[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Rules and Regulations]
[Pages 39058-39092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17752]



[[Page 39057]]

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Part II





Nuclear Regulatory Commission





_______________________________________________________________________



10 CFR Part 20, et al.



Radiological Criteria for License Termination; Final Rule



Radiological Criteria for License Termination: Uranium Recovery 
Facilities; Proposed Rule

  Federal Register / Vol. 62, No. 139 / Monday, July 21, 1997 / Rules 
and Regulations  

[[Page 39058]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 20, 30, 40, 50, 51, 70 and 72

RIN 3150-AD65


Radiological Criteria for License Termination

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations regarding decommissioning of licensed facilities to provide 
specific radiological criteria for the decommissioning of lands and 
structures. The final rule is intended to provide a clear and 
consistent regulatory basis for determining the extent to which lands 
and structures can be considered to be decommissioned. The final rule 
will result in more efficient and consistent licensing actions related 
to the numerous and complex site decommissioning activities anticipated 
in the future.

EFFECTIVE DATE: This regulation becomes effective on August 20, 1997. 
However, licensees may defer rule implementation until August 20, 1998.

FOR FURTHER INFORMATION CONTACT: Cheryl A. Trottier, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: (301) 415-6232, e-mail CAT[email protected]; Frank 
Cardile, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, telephone: (301) 415-6185; e-
mail [email protected]; Dr. Carl Feldman, Office of Nuclear Regulatory 
Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, telephone: (301) 415-6194, e-mail [email protected]; or Christine M. 
Daily, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, telephone: (301) 415-6026, e-
mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. Overview of Public Comments
IV. Summary of Public Comments, Responses to Comments, and Changes 
From Proposed Rule
    A. Overall license termination approach and criteria for 
unrestricted use (proposed rule Secs. 20.1402 and 20.1404).
    1. Proposed rule content.
    2. Criteria for unrestricted use, including total effective dose 
equivalent, as low as reasonably achievable, and decommissioning 
objective.
    3. General comments on the dose criterion.
    4. Average member of the critical group.
    B. Criteria for restricted use (proposed rule Secs. 20.1402(d) 
and 20.1405).
    1. Proposed rule content.
    2. Comments on acceptability of restricted use for 
decommissioned sites.
    3. Response.
    4. Summary of rule revisions on restricted use.
    C. Alternate criteria for license termination.
    1. Codifying provisions for certain facilities that the proposed 
rule suggested exempting.
    2. Exclusion of uranium/thorium mills proposed in 
Sec. 20.1401(a).
    3. Other exemptions.
    D. Groundwater protection criteria (proposed rule Sec. 20.1403).
    1. Proposed rule content.
    2. Use of Environmental Protection Agency drinking water 
standards in NRC's regulation.
    E. Public participation (proposed rule Secs. 20.1406 and 
20.1407).
    1. Proposed rule content.
    2. General requirements on notification and solicitation of 
comments (proposed rule Sec. 20.1406(a)).
    3. Additional requirements on public participation (including 
those for restricted use, for alternate criteria, and for use of 
site-specific advisory boards (proposed rule Sec. 20.1406(b)).
    4. Specific questions on functioning of site-specific advisory 
boards.
    F. Other procedural and technical issues.
    1. State and NRC compatibility.
    2. Grandfathering sites with previously approved plans (proposed 
rule Sec. 20.1401(b)).
    3. Finality of decommissioning and future site reopening 
(proposed rule Sec. 20.1401(c)).
    4. Minimization of contamination (proposed rule Secs. 20.1401(d) 
and 20.1408).
    5. Provisions for readily removable residual radioactivity.
    6. Separate standard for radon.
    7. Calculation of total effective dose equivalent over 1000 
years to demonstrate compliance with dose standard.
    G. Other comments.
    1. Definitions (proposed rule Sec. 20.1003).
    2. Need for regulatory guidance.
    3. Need for flexibility.
    4. Consistency with NRC's timeliness rule.
    5. Comments from power reactor decommissioning rulemaking.
    6. Mixed waste, hazardous waste, and naturally occurring and 
accelerator-produced radioactive material.
    7. Recycle.
    8. The rulemaking process.
V. Agreement State Compatibility
VI. Relationship Between the Generic Environmental Impact Statement 
and Site-Specific Decommissioning Actions
VII. Final Generic Environmental Impact Statement: Availability
VIII. Paperwork Reduction Act Statement
IX. Regulatory Analysis
X. Regulatory Flexibility Certification
XI. Backfit Analysis
XII. Small Business Regulatory Enforcement Fairness Act

I. Introduction

    The Nuclear Regulatory Commission is amending its regulations 
regarding decommissioning of licensed facilities to provide specific 
radiological criteria for the decommissioning of lands and structures. 
This action is necessary to ensure that decommissioning will be carried 
out without undue impact on public health and safety and the 
environment.
    These criteria apply to the decommissioning of licensed facilities 
and facilities subject to the NRC's jurisdiction. The Commission will 
apply these criteria in determining the adequacy of remediation of 
residual radioactivity resulting from the possession or use of source, 
byproduct, and special nuclear material. The criteria apply to 
decommissioning of nuclear facilities that operate through their normal 
lifetime and to those that may be shut down prematurely.
    The intent of this rulemaking is to provide a clear and consistent 
regulatory basis for determining the extent to which lands and 
structures must be remediated before decommissioning of a site can be 
considered complete and the license terminated. The Commission believes 
that inclusion of criteria in the regulations will result in more 
efficient and consistent licensing actions related to the numerous and 
frequently complex site remediation activities anticipated in the 
future. The Commission has reassessed residual contamination levels 
contained in existing guidance based on changes in basic radiation 
protection standards, improvements in remediation and radiation 
detection technologies, decommissioning experience, public comments 
received on rule drafts and public comments presented at workshops held 
as part of the rulemaking effort and public comments received on the 
proposed rule.
    The NRC has previously applied site release criteria for 
decommissioning on a site-specific basis using existing guidance. 
Although site-specific situations will still occur, the Commission 
believes that codifying radiological criteria for decommissioning in 
the regulations will allow the NRC to more effectively carry out its 
function of protecting public health and the environment at 
decommissioned sites by providing for more efficient use of NRC and 
licensee resources, consistent application across all types of 
licenses, and a predictable basis for decommissioning planning.

[[Page 39059]]

II. Background

    On August 22, 1994 (59 FR 43200), the NRC published a proposed rule 
for comment in the Federal Register to amend 10 CFR part 20 of its 
regulations ``Standards for Protection Against Radiation'' to include 
radiological criteria for license termination. The public comment 
period closed on January 20, 1995. Comments received on the proposed 
rule were summarized in NUREG/CR-6353. A workshop was held on December 
6-8, 1994, to solicit additional comments related to site-specific 
advisory boards as described in the proposed rule. Comments received 
during that workshop were summarized in NUREG/CR 6307 1. A 
workshop was also held on September 29, 1995, to specifically discuss 
methods for implementing the rule. Additionally, communication with the 
public on the proposed rule was maintained through the Electronic 
Bulletin Board system.
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    \1\ Copies of NUREGS may be purchased from the Superintendent of 
Documents, U.S. Government Printing Office, P.O. Box 37082, 
Washington, DC 20013-7082. Copies are also available from the 
National Technical Information Service, 5285 Port Royal Road, 
Springfield, VA 22161. A copy is also available for inspection and/
or copying at the NRC Public Document Room, 2120 L Street, NW. 
(Lower Level), Washington, DC.
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III. Overview of Public Comments

    Over 100 organizations and individuals submitted comments on the 
proposed rule. The commenters represented a variety of interests. 
Comments were received from Federal and State agencies, electric 
utility licensees, material and fuel cycle licensees, citizen and 
environmental groups, industry groups, native American organizations, 
and individuals. The commenters offered from 1 to over 50 specific 
comments and represented a diversity of views. The commenters addressed 
a wide range of issues concerning all parts of the rule. The reaction 
to the rule in general and to specific provisions of the rule was 
varied. Viewpoints were expressed both in support of and in 
disagreement with nearly every provision of the rule.

IV. Summary of Public Comments, Responses to Comments, and Changes From 
Proposed Rule

    The following sections describe the principal public comments 
received on the proposed rule (organized according to the major subject 
areas and sections of the proposed rule), present NRC responses to 
those comments, and explain principal changes to the proposed rule 
(where they occur) in response to those comments. The comments are 
organized according to the following major subject areas and sections 
of the proposed rule and are presented in the following subsections:
    (a) Overall license termination approach (unrestricted use, 
restricted use, exemptions, and alternate criteria), and specific 
issues on criteria for unrestricted use (including total effective dose 
equivalent (TEDE), as low as is reasonably achievable (ALARA), 
objective of decommissioning, average member of critical group);
    (b) Specific issues on criteria for restricted use (bases for using 
restricted use, reliance on institutional controls, 1 mSv (100 mrem) 
TEDE cap, engineered barriers, financial assurance);
    (c) Specific issues on exemptions and alternate criteria for 
license termination (facilities with large volumes of low level wastes, 
uranium and thorium mills, exemptions);
    (d) Groundwater protection criteria (use of Environmental 
Protection Agency (EPA) drinking water standards of 40 CFR 141 in NRC's 
regulation);
    (e) Public participation (means of notification, site-specific 
advisory boards (SSABs));
    (f) Other procedural and technical issues (state compatibility, 
grandfathering, finality, minimization of contamination, readily 
removable residual radioactivity, radon, calculation of TEDE over 1000 
years to demonstrate compliance with dose standard); and
    (g) Other comments (definitions, regulatory guidance; timeliness 
rule; wastes; recycle; rulemaking process).
    The comments received from both public comment and the workshops 
have been factored into the Commission's decisionmaking on the final 
rule and into the technical basis for guidance documents implementing 
the final rule. The description of changes to the final rule made as a 
result of the comments in each of the major subject areas follows each 
comment/response section.

A. Overall License Termination Approach and Criteria for Unrestricted 
Use (Proposed Rule Secs. 20.1402 and 20.1404)

A.1  Proposed Rule Content
    The proposed rule (Sec. 20.1402(d)) presented an overall approach 
for license termination involving either of two basic methods, i.e., 
unrestricted use or restricted use of sites after license termination. 
The proposed rule indicated that unrestricted use was generally 
preferred, but that restricted use was also permitted because it was 
recognized that there may be cases where achieving unrestricted use 
would not be reasonable.
    Specific requirements for use of each of these two basic methods 
were presented in the proposed rule. The preamble to the proposed rule 
also indicated that there may be certain licensees that would seek 
exemptions from the decommissioning criteria of the proposed rule, 
although it did not codify this exemption path.
    Section IV.A.2 reviews in detail the development of unrestricted 
use criteria; and, in doing so it also indicates, in general, how the 
overall approach for license termination has been reexamined to 
consider public comments. Specific issues and requirements regarding 
other areas, specifically restricted use, exemptions, and alternate 
criteria, are discussed in more detail in Sections IV.B and IV.C of 
this preamble.
    Section 20.1402(a) of the proposed rule indicated that the 
objective of decommissioning is to reduce residual radioactivity in 
structures, soils, groundwater, and other media at the site so that the 
concentration of each radionuclide that could contribute to residual 
radioactivity is indistinguishable from the background radiation 
concentration for that nuclide. Section 20.1402(a) further noted that, 
as a practical matter, it would be extremely difficult to demonstrate 
that such an objective had been met and that a site release limit for 
unrestricted use was being proposed.
    Section 20.1404 of the proposed rule indicated that a site would be 
considered acceptable for unrestricted use if the residual 
radioactivity that is distinguishable from background radiation results 
in TEDE to an average member of the critical group of 0.15 mSv/y (15 
mrem/y) and has been reduced to levels that are ALARA.
    Section 20.1402(d) of the proposed rule indicated that release for 
unrestricted use of a facility is the preferred approach but that the 
alternative of release for restricted use would also be allowed if its 
use were justified (see Section IV.B).
A.2  Criteria for Unrestricted Use, Including TEDE, ALARA, and 
Decommissioning Objective
    A.2.1  Comments. Some commenters (including EPA) agreed that 0.15 
mSv/y (15 mrem/y) is an acceptable criterion because it is attainable, 
provides a margin of safety, and isn't unjustifiably costly. The 
Department of Energy (DOE) agreed that 0.15 mSv/y (15 mrem/y) could be 
acceptable if reasonable scenarios were considered although it 
preferred 0.25 mSv or 0.3 mSv/y (25 or 30 mrem/y) with ALARA. However, 
most commenters did not agree with the

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0.15 mSv/y (15 mrem/y) criterion. Some opposed 0.15 mSv/y (15 mrem/y) 
as being too high and preferred alternatives that reduced the 
contamination level to lower levels, including preexisting background. 
The majority of commenters opposed 0.15 mSv/y (15 mrem/y) as being too 
low and gave alternatives that generally included increasing the limit 
to 0.25, 0.3, 0.5, or 1 mSv/y (25, 30, 50, or 100 mrem/y) with further 
reduction based on ALARA. The categories of reasons given by commenters 
opposing 0.15 mSv/y (15 mrem/y) as either too high or too low included 
potential health impacts or the lack of demonstrable health effects at 
these levels, consistency with national and international standards, 
effect of multiple sources, consistency with other NRC/EPA regulations, 
analysis of costs vs. benefits, ability to measure, effect on disposal 
capacity, effect on sites with naturally occurring radioactive material 
(NORM), and responsibility for cleanup of sites.
    The proposed rule indicated that licensees would be expected to 
demonstrate that doses are ALARA below the proposed 0.15 mSv/y (15 
mrem/y) dose criterion. Some commenters endorsed ALARA analyses in 
specific cases to determine if doses should be reduced below 0.15 mSv/y 
(15 mrem/y) and recommended that a value of 0.03 (or less) mSv/y (3 (or 
less) mrem/y) be the ALARA objective. Some of these commenters also 
requested that the NRC explicitly mandate that technical and economic 
analyses be performed. Other commenters indicated that ALARA principles 
and analyses should not be required to determine if cleanup should be 
performed to reduce doses below 0.15 mSv/y (15 mrem/y) because the 
costs are large in comparison with the small reduction in risk. Several 
commenters indicated, alternatively, that ALARA should be allowed above 
0.15 mSv/y (15 mrem/y) and that the rule should allow ALARA analyses to 
be used to permit a licensee to release its site at a value higher than 
0.15 mSv/y (15 mrem/y) (up to 1
mSv/y (100 mrem/y)) if ALARA calculations support this alternative. 
Another commenter disagreed and recommended that ALARA analyses be 
applied only to demonstrate if additional cleanup is required below 
0.15 mSv/y (15 mrem/y). Some commenters stated that guidance should be 
provided describing how ALARA should be achieved, how doses would be 
quantified, how models and parameters would be selected, what $/person-
rem value would be used, how nonradiological risks would be considered, 
how net risks would be evaluated, how flexibility would be 
incorporated, what degree of simplification of complex models would be 
incorporated, and what final criteria would be used.
    The proposed rule also contained, in Sec. 20.1402(a), a 
decommissioning objective of reducing residual radioactivity to levels 
that are indistinguishable from background. Section 20.1402(a) further 
noted that such an objective may be difficult to meet as a practical 
matter. Many commenters opposed establishment of the decommissioning 
objective because it is arbitrary, serves no purpose for industrial 
sites, is costly and a waste of resources, is unlikely to be achieved, 
and cannot be measured. Some commenters supported establishing the 
proposed objective because it is reasonable from a health standpoint. 
Others suggested alternative objectives such as ALARA or using a dose 
that is indistinguishable from the variation in background.
    A.2.2  Response. The preamble to the proposed rule described three 
broad considerations as providing the overall rationale for the 
proposed rule's approach to license termination. The first two 
considerations were related to health and safety, i.e., level of risk 
and need for a constraint or margin of safety below the 1 mSv/y (100 
mrem/y) public dose limit of 10 CFR part 20 to account for the 
potential effect of multiple sources of radiation exposure. The third 
consideration was related to practicality and reasonableness of costs. 
The preamble to the proposed rule noted that the risk implied by use of 
the proposed 0.15 mSv/y (15 mrem/y) dose is comparable to other 
standards and practices of EPA and NRC for areas of unrestricted access 
in the vicinity of facilities, and that the proposed 0.15 mSv/y (15 
mrem/y) standard provides a substantial margin of safety (constraint) 
for a single source below the 1 mSv/y (100 mrem/y) public dose limit in 
10 CFR part 20 to account for the potential exposure of a member of the 
public to other sources. This ``constraint'' approach was noted as 
being consistent with generic constraint recommendations made by 
national and international scientific bodies such as the International 
Commission on Radiation Protection (ICRP) and the National Council on 
Radiation Protection and Measurements (NCRP). Requirements related to 
ALARA, the decommissioning objective, and restricted use were included 
in the rule based on the NRC staff analysis in the Draft Generic 
Environmental Impact Statement (GEIS) (NUREG-1496) that showed that the 
costs of reducing exposures to, or in some cases below, a 0.15 mSv/y 
(15 mrem/y) criterion would not generally be unduly burdensome for most 
licensees, although in those cases where the costs would present an 
unreasonable burden, release of the site with restrictions placed on 
its use would provide an alternative means for achieving the same level 
of protection. Achieving levels of less than 0.15 mSv/y (15 mrem/y), 
including achieving the decommissioning objective, was generally seen 
as not cost-effective because increasingly larger volumes of concrete 
and soil would have to be removed at a greater net risk due to deaths 
from transportation accidents and because more difficult survey 
measurements would have to be made with little net benefit in dose 
reduction.
    The NRC considered alternatives suggested in public comments and 
reexamined the rationale of the proposed rule. A summary of that 
reexamination, along with a description of particular comments on the 
rationale, is contained in the following subsections.
    A.2.2.1  Level of risk and consistency with other EPA/NRC 
standards. Some commenters criticized the health risk associated with a 
0.15 mSv/y (15 mrem/y) limit as too high thereby providing inadequate 
public protection. In particular, they objected to the NRC's reliance 
on ICRP and NCRP because recent research (including findings in the 
aftermath of the 1986 Chernobyl accident and in the 1990 report on 
Biological Effects of Ionizing Radiation (the BEIR V report)) showed 
risks to be higher than ICRP or NCRP indicated, or suggested other 
sources for limits, including a British standard and a National Academy 
of Sciences statement on radiation safety. Commenters also indicated 
that 0.15 mSv/y (15 mrem/y) was too high because it is higher than 
other NRC or EPA standards such as those for operating reactors.
    The majority of commenters criticized 0.15 mSv/y (15 mrem/y) as too 
low for reasons which included that it is far below the level at which 
health effects have been observed in studies, that the risks associated 
with other EPA and NRC standards (including 10 CFR parts 20, 60 and 61, 
40 CFR parts 190 and 191, and EPA's radon action level) are higher, and 
that it is based on the linear non-threshold theory which is not 
appropriate for setting such standards. These commenters also 
criticized the relationship of the risks implied by this rule to those 
implied by standards for chemical hazards.
    In general, many commenters stated that the NRC should work closely 
with

[[Page 39061]]

the EPA in developing its decommissioning regulations to assure that 
there are no conflicting or duplicate requirements and that the 
acceptable risk levels and associated requirements developed by the two 
agencies are compatible or the same. DOE noted that a nonuniform 
approach could significantly impact the DOE environmental restoration 
program and that NRC/EPA regulations will have an impact beyond NRC 
licensees. There was some commenter disagreement as to whether EPA or 
NRC should take the lead in issuance of exposure standards. In its 
comments on the NRC's proposed rulemaking, the EPA supported the 0.15 
mSv/y (15 mrem/y) limit.
    In response, the NRC has considered recent information and 
recommendations in ICRP Publication 60 and NCRP No. 116. These 
documents are developed by recognized experts in the fields of 
radiation protection and health effects and contain reviews of current 
significant research in radiation health effects. The NCRP is a 
nonprofit corporation chartered by the U.S. Congress to develop and 
disseminate information and recommendations about protection against 
radiation and to cooperate with the ICRP and other national and 
international organizations with regard to these recommendations. The 
ICRP has continued to update and revise its estimates of health effects 
of radiation since its inception in 1928. In its deliberations, ICRP 
maintains relationships with United Nations health and labor 
organizations.
    In addition, the NRC evaluated the proposed Federal Radiation 
Protection Guidance for Exposure of the General Public (FRG) as 
published for comment on December 23, 1994 (59 FR 66414), in which the 
EPA, under its charter, made recommendations to the President of the 
United States concerning recommended practices for protection of the 
public and workers from exposure to radiation.
    Recent recommendations contained in ICRP 60, NCRP No. 116, and the 
proposed FRG are essentially similar. Use of these sources for 
formulating basic radiation protection standards is consistent with 
NRC's general approach regarding risk decisions as is noted in the 
preamble to issuance of 10 CFR part 20 on May 21, 1991 (56 FR 23360). 
The NRC considers it reasonable and appropriate to use the findings of 
these bodies in developing criteria for license termination to apply to 
its licensees.
    The ICRP and NCRP and EPA have reviewed current, significant 
studies made by other health research bodies, such as the National 
Academy of Sciences-National Research Council's Committee on the 
Biological Effects of Ionizing Radiation (BEIR) and the United Nations 
Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), and 
have developed recommendations regarding limitations on exposure to 
radiation. In particular, the BEIR Committee conducted major reviews of 
the scientific data on health risks of low levels of ionizing radiation 
in 1972, 1980, 1988, and 1990, and similar reviews were published by 
UNSCEAR in 1977, 1982, 1986, and 1988. As noted in the proposed FRG, 
these studies have provided more certainty about radiation risks at 
high doses and dose rates. Using that information and assumptions of 
linearity with low dose/dose rate reduction factors, BEIR V contains 
updated risk factors.
    Concerning recent information from the Chernobyl accident noted by 
a commenter, there are still ongoing studies of the effects of the 
accident. A report published by the principal international 
organization studying health effects from the accident, the 
Organization for Economic Co-operation and Development (OECD), entitled 
``Chernobyl: Ten Years On; Radiological and Health Impact,'' summarized 
the findings regarding health impacts by noting that scientific and 
medical observation of the population has not revealed any increase in 
cancers or other radiation induced disease that could be attributable 
to the Chernobyl accident. The only area where an increase was noted 
was for thyroid cancer. However, these effects most likely resulted 
from the release of short-lived radioiodine from the accident and the 
affinity of the thyroid gland for iodine. Similar effects would not be 
applicable in decommissioning because radioactive iodine is not 
expected to be a significant contaminant. The report further notes 
that, while studies continue on long term effects, it is unlikely that 
the exposure to contaminants in the environment will lead to 
discernible radiation effects in the general population. Thus, this 
research does not appear to indicate that the findings of the ICRP and 
NCRP will be shown to underestimate risks.
    Specifically with regard to the risk level, some of the commenters 
stated that the risk of fatal cancers from 0.15 mSv/y (15 mrem/y) is 
too high in comparison with risk goals in the range 1 x 10-4 
to 1 x 10-6 used by EPA in Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA) regulations. Other 
commenters disagreed and stated that precedents from earlier NRC 
rulemakings support a level of risk significantly greater than that and 
more appropriately in a range of 1 x 10-2 to 
1 x 10-3 (e.g., the level of lifetime risk corresponding to 
the 1 mSv/y (100 mrem/y) public dose limit of 10 CFR Part 20, that is 
NRC's basic standard for public safety, is about 
1.5 x 10-3). Several of these commenters also criticized 
0.15 mSv/y (15 mrem/y) as too low because the linear non-threshold 
model overestimates the risk and should not be used in the analysis. In 
response to comments on the risk level, constant exposure over a 30-
year time period to dose levels of about 0.15-0.25 mSv/y (15-25 mrem/
y), results in an estimated lifetime risk of fatal cancer of about 
2.3 x 10-4 to 3.8 x 10-4 which is at the upper 
end of the acceptable risk range suggested by EPA in their comments on 
NRC's proposed rule but lower than that in NRC's public dose 
limits.2 These estimates are based on use of the linear non-
threshold model for calculating risk estimates. In response to specific 
comments on use of the linear non-threshold model in estimating risk, 
use of the linear non-threshold model for estimating incremental health 
effects per radiation dose incurred is considered a reasonable 
assumption for regulatory purposes by international and national 
scientific bodies such as ICRP and NCRP. The principal international 
and national radiological protection criteria, including the NRC's, are 
based on this assumption as a measure of conservatism. NRC's policy 
regarding use of the linear non-threshold model was stated in the 
preamble to the issuance of 10 CFR part 20 (56 FR 23360; May 21, 1991) 
noting that the assumptions regarding a linear non-threshold dose 
effect model are appropriate for formulating radiation protection 
standards. Although this matter continues to be the subject of further 
consideration at this time, there is not sufficient evidence to 
convince the NRC to alter its policy as part of this rulemaking.
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    \2\ The risks are estimated assuming a risk coefficient of 
5 x 10-4 per rem and a 30-year lifetime exposure that is 
used by EPA in estimating risk from contaminated sites based on the 
assumption that it is unlikely that an individual will continue to 
live or work in the same area for more than 30 years. Such an 
estimate is seen as providing a conservative estimate of potential 
risk because land use patterns are generally such that persons 
living at or near a site will not continuously receive the limiting 
dose, and, for most of the facilities covered by this rule, the TEDE 
is controlled by relatively short-lived nuclides of half-lives of 30 
years or less for which the effect of radioactive decay will, over 
time, reduce the risk significantly (e.g., at reactors where much of 
the contamination is from Co-60 with a half-life of 5.3 years).
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    To provide some perspective on the conservatism of considering dose 
criteria in the range of 0.15-0.25 mSv/

[[Page 39062]]

 y (15-25 mrem/y), it should be noted that, as described in the Final 
GEIS (NUREG-1496) prepared in support of this rulemaking, these levels 
are small when compared to the average level of natural background 
radiation in the United States (about 3 mSv/y (300 mrem/y)) and the 
variation of this natural background across the United States. In 
addition, although as noted above NRC is not altering its policy 
regarding use of the linear non-threshold model as part of this 
rulemaking, there is uncertainty associated with estimating risks at 
such dose levels. This uncertainty occurs because evidence of radiation 
dose health effects has only been observed at high dose levels (200 mSv 
(20,000 mrem) and above) and significant uncertainty in risk estimation 
is introduced when extrapolating to the very low dose levels being 
considered in this rulemaking. The health effects resulting from even a 
dose of 1 mSv (100 mrem) are uncertain. The BEIR Committee stated in 
its 1990 report (BEIR V) that ``Studies of populations chronically 
exposed to low-level radiation, such as those residing in regions of 
elevated natural background radiation, have not shown consistent or 
conclusive evidence of an associated increase in the risk of cancer.''
    The risk associated with a dose criterion in the range of about 
0.15-0.25 mSv/y (15-25 mrem/y) is generally consistent with the risk 
levels permitted in the performance objectives for low-level waste 
facilities in 10 CFR 61.41, and for fuel cycle facilities and for spent 
fuel and high level waste in EPA's 40 CFR 190 and 191. In addition, 
doses in the range of 0.15-0.25 mSv/y (15-25 mrem/y) are comparable to 
current NRC practices for decommissioning of reactors and certain 
materials facilities and fuel cycle facilities. Specifically, reactors 
have been decommissioned in accordance with Regulatory Guide 1.86 and 
with an NRC license termination letter to Stanford University (April 
21, 1982, Docket No. 50-141). Materials facilities have been released 
in accordance with the levels for external radiation for beta/gamma 
exposure in NRC's Policy and Guidance Directive FC 83-23. In addition, 
a dose criterion in the range of 0.15-0.25 mSv/y (15-25 mrem/y) is 
generally at the low end of the range of values estimated for Option 1 
of the 1981 Branch Technical Position (BTP) for sites with uranium and 
thorium and used for Ra-226 in 10 CFR 40, Appendix A, for uranium mill 
contamination.
    A.2.2.2  Effect of multiple sources and margin of safety below 1 
mSv/y (100 mrem/y). Some commenters suggested that 0.15 mSv/y (15 mrem/
y) is too low and indicated that the NRC limit was inconsistent with 
ICRP and NCRP especially with regard to considerations of multiple 
sources of exposure, and that it would be unusual for an individual to 
be exposed to multiple sources approaching the 1 mSv/y (100 mrem/y) 
limit. These commenters suggested that 25-30 percent of 1 mSv (100 
mrem) is an adequate margin to account for multiple sources.
    In response, and by way of background, it is noted that the NCRP in 
its publication No. 116 (Chapter 15) recommends that, for continuous 
exposure, the effective dose to members of the public not exceed 1 mSv/
y (100 mrem/y) from all man-made sources, other than medical and not 
including natural background sources. Similarly, ICRP, in Table 6 of 
ICRP Publication 60, recommends a limit of 1 mSv/y (100 mrem/y) as the 
dose limit for the public, and recommendation No. 3 of the draft EPA 
Federal Radiation Protection Guidance (FRG) indicates that the combined 
radiation doses incurred in any single year from all sources of 
exposure (excluding medical and natural background) should not normally 
exceed 1 mSv (100 mrem) and that continued or chronic exposure of an 
individual over substantial portions of a lifetime at or near 1 mSv/y 
(100 mrem/y) should be avoided. Consistent with these bodies, the NRC 
issued 10 CFR part 20 (56 FR 23360) in 1991 that established a public 
dose limit of 1 mSv/y (100 mrem/y) in 10 CFR 20.1301.
    These national and international bodies also note and agree that, 
although the limit for the public dose should be 1 mSv/y (100 mrem/y) 
from all man-made sources combined, it would seem appropriate that the 
amount that a person would receive from a single source should be 
further reduced to be a fraction of the limit to account for the 
possibility that an individual may be exposed to more than one source 
of man-made radioactivity, thus limiting the potential that an 
individual would receive a dose at the public dose limit. 
Recommendations from these bodies, as well as from the NRC's Advisory 
Committee on Nuclear Waste (ACNW), regarding what the fraction from a 
source should be are:
    (a) NCRP No. 116, Chapter 15, notes that no single source or set of 
sources under one's control should result in an individual being 
exposed to more than 0.25 mSv/y (25 mrem/y). This fraction was 
presented as a simple alternative to having a site operator (where a 
site could expose individuals to levels greater than 0.25 mSv/y (25 
mrem/y)) investigate all man-made exposures that an individual at the 
site would be exposed to so as to demonstrate that the total dose does 
not exceed 1 mSv/y (100 mrem/y). The clear implication in this simple 
alternative is that, if individual sources are constrained to 0.25 mSv/
y (25 mrem/y), NCRP believes it likely, given the low potential for 
multiple exposures, that the public dose limits will be met. Further 
reductions considering ALARA would still be considered by NCRP No. 116.
    (b) ICRP 60, Section 5.5.1, in discussing the principles of 
constraints and limits, notes that it is appropriate to select dose 
constraints applied to each source to allow for contributions from 
other sources so as to maintain doses below the 1 mSv/y (100 mrem/y) 
limit. ICRP 60 does not contain numerical guidance on dose constraints 
for particular practices, but notes that cumulative exposures to 
individuals from existing sources near 1 mSv/y (100 mrem/y) are rarely 
a problem primarily because of the widespread use of source-related 
dose constraints.
    Further explanation of the fundamental concepts of ICRP 60 are 
contained in the paper, ``The ICRP Principles of Radiological 
Protection and Their Application to Setting Limits and Constraints for 
the Public from Radiation Sources,'' by Professor Roger Clarke, 
Chairman of the ICRP (January 12, 1995; a copy is available in the file 
for this rulemaking in the NRC Public Document Room, 2120 L Street NW. 
(Lower Level), Washington, DC). The paper notes that the constraint 
approach derives from the optimization principle of radiation 
protection in which, for any source, individual doses should be ALARA 
and also be constrained by restrictions on doses to individuals (i.e., 
dose constraints). The paper further notes that a constraint is an 
individual related criterion applied to a single source to ensure that 
the overall dose limits are not exceeded, and that a dose constraint 
would therefore be set at a fraction of the dose limit as a boundary on 
the optimization of that source. Based on the principles presented in 
the paper, the constraint recommended in the paper for a decommissioned 
site is 0.3 mSv/y (30 mrem/y) and that further optimization through the 
ALARA principle is appropriate. As is the case for NCRP No. 116, the 
implication of the paper and ICRP 60 is that the constraint level is a 
boundary on the dose from this source and is sufficient to assure that 
members of the public are not exposed to levels in excess of the public 
dose limit. The rationale for this is expressed in Section 5.5.1 of 
ICRP 60 where it is noted that the critical group

[[Page 39063]]

is not normally exposed to the constraint level from more than one 
source although it may be exposed to some dose level less than the 
constraint level from more than one source.
    (c) The proposed FRG in recommendation No. 4 indicates that 
individual sources should have ``authorized limits'' set at a fraction 
of the 1 mSv/y (100 mrem/y) limit for all sources combined. The draft 
FRG notes that the basis for this recommendation is the various 
categories of activities using radiation that can lead to exposure to 
members of the public, and also notes the need for broad assumptions 
about future activities involving radiation use.
    The draft FRG does not recommend a level for any one source 
although it does note that setting such a fraction will necessarily be 
a broad judgment based on a general observation of the characteristics 
of existing activities, projections for continuing those activities in 
the future, and the potential for other uses in the future that can be 
identified now. Thus, the draft FRG notes that, in the case of 
authorized limits for broad categories of sources, the judgments will 
often necessarily be broad and may lead to somewhat higher values, with 
further implementation of the ALARA process left to management of 
individual sources within a category. The draft FRG does not indicate 
how this judgment is to be made although it cites authorized standards 
for certain sources that currently exist, including 40 CFR part 190 for 
the nuclear fuel cycle, Appendix I to 10 CFR part 50 for power 
reactors, 10 CFR part 61, and 40 CFR part 141. All of these set 
authorized fractions at 25 percent or less of the 1 mSv/y (100 mrem/y) 
public dose limit. NRC, in its comments on EPA's draft FRG, questioned 
what was the appropriate fraction of the public dose limit in 10 CFR 
part 20 that should be used in setting constraints that would become 
``authorized'' limits.
    (d) In its review of how the principles and recommendations of the 
ICRP, NCRP, and FRG are relevant to the proposed NRC rule, NRC's 
Advisory Committee on Nuclear Waste (ACNW) noted that 0.15 mSv/y (15 
mrem/y) represented an unnecessarily conservative fraction of the 1 
mSv/y (100 mrem/y) annual limit. The ACNW agreed that the need to 
partition the annual recommended dose limit among several sources to 
which a person is likely to be exposed appears justifiable and noted 
that no explicit guidance from the various national and international 
bodies on this subject exists. ACNW stated that a constraint of 25 
percent or 30 percent of the 1 mSv/y (100 mrem/y) limit appears more 
justified and appropriate based on the likelihood that no more than 3 
or 4 separate regulated sources will affect the critical group at any 
instance. ACNW further noted that the selection of 0.15 mSv/y (15 mrem/
y), that represents about \1/7\ of the annual limit, assumes that a 
person will encounter a simultaneous dose from seven different 
regulated sources and that this appears to them to be unjustified, 
particularly because the ALARA principle accompanies all such NRC 
regulatory actions.
    The recommendations of the previously cited organizations can be 
summarized as suggesting that a constraint value should be set as part 
of the process of optimizing the dose from a particular source and that 
this constraint value should be set as a boundary value below which 
further optimization or ALARA principles should be employed. The 
recommendations also appear to suggest that setting a source constraint 
of 25-33 percent of the annual dose limit of 1 mSv/y (100 mrem/y) is 
appropriate and adequate to ensure that the dose limit is met, and do 
not tend to lend support to 0.15 mSv/y (15 mrem/y) as the appropriate 
fraction to which to constrain the dose from an individual source 
because it is not likely that a critical group will be exposed to as 
many as seven sources. Thus, the recommendations appear to indicate 
that the constraint value should be set using a more reasonable 
approach.
    In discussing the bases for the 0.15 mSv/y (15 mrem/y) dose 
criterion in the proposed rule, the Commission noted in the preamble 
(at 59 FR 43219; August 22, 1994) that 0.15 mSv/y (15 mrem/y) would 
provide a ``substantial'' margin of safety and be appropriate for 
decommissioned facilities. As part of its review of the public 
comments, the Commission considered the recommendations of the 
standards-setting bodies previously cited. Further, in making a 
judgment on the appropriate value of the fraction, the Commission also 
considered principles of optimization, numbers and types of sources, 
potential for exposure of critical groups to more than one source at 
the constraint value, and assumptions regarding the manner in which a 
critical group would be exposed. NRC reviewed the assumptions of the 
Draft and Final GEIS regarding exposure pathways and also NUREG/CR-5512 
upon which the Draft and Final GEIS are based. NUREG/CR-5512 provides 
an analysis of exposure pathways for critical groups at decommissioned 
facilities. The principal limiting scenarios include: (a) Full time 
residence and farming at a decommissioned site, (b) exposure while 
working in a decommissioned building, and (c) renovation of a newly 
decommissioned building. These principal limiting exposure scenarios 
are intended to overestimate dose and also tend to be somewhat mutually 
exclusive; i.e., a person living near a decommissioned nuclear facility 
would only receive a dose near the constraint level if his living 
pattern includes full-time residency and farming at the site. This 
living pattern would make it difficult for the member of this critical 
group to also be a member of the critical group from other licensed or 
decommissioned sources. Conversely, a person having less residency than 
a full time farmer (e.g., apartment dweller, homeowner who works away 
from the site) might receive doses from other sources but would receive 
less than the constraint value from the decommissioned site because the 
exposure time and the number of pathways would be reduced. Thus, given 
the assumptions regarding living patterns made in evaluating compliance 
with the constraint level, it is difficult to envision an individual 
receiving levels approaching constraint levels from more than one 
licensed or decommissioned source. It is also likely that individuals 
at a decommissioned site will actually be exposed to doses 
substantially below the constraint level because of ALARA 
considerations and because of the nature of the cleanup process itself, 
i.e., the process of scabbling of concrete removes a layer of concrete 
which likely contains a large fraction of the remaining radioactivity, 
and the process of soil excavation is a gross removal process that is 
also likely to remove large fractions of the radioactivity. For 
example, the Final GEIS indicates that, for the reference cases 
analyzed, removal of a layer of concrete by scabbling will result in 
doses at levels from 2 to more than 10 times lower than a constraint 
value. In addition to consideration of decommissioned sources, it is 
also difficult to envision that an individual could come in contact 
with more than a few other sources as part of normal living patterns. 
For example, the NCRP in NCRP No. 93, ``Ionizing Radiation Exposure of 
the Population of the United States,'' September 1987, reviewed likely 
radiation exposures to the public from consumer products, air 
emissions, and fuel cycle facilities (including nuclear power plants) 
and found that, in general, exposure to the public is a small fraction 
of 1 mSv/y (a few mrem/y). Recent experience on

[[Page 39064]]

nuclear power plant emissions and dose commitments (NUREG/CR-2850) 
tends to support the conclusions of NCRP No. 93 about power plant 
exposures.
    NRC's generic evaluation of uses of and doses from various sources, 
including decommissioned sources, supplemented by the recommendations 
of the standards setting bodies and advisory committee noted above, 
suggests that the substantial added margin of safety provided by the 
0.15 mSv/y (15 mrem/y) value may be too restrictive for its intended 
purpose of constraining doses from this category of sources in 
establishing an appropriate boundary constraint. Rather, the evaluation 
leads NRC to conclude that 25 percent of the public dose limit is a 
sufficient and ample fraction to use as the limitation for 
decommissioned sources.
    Thus, the Commission concludes that a generic dose constraint or 
limitation for decommissioning sources of 0.25 mSv/y (25 mrem/y) for 
unrestricted release of a site is reasonable from the standpoint of 
providing a sufficient and ample margin of safety for protection of 
public health and safety. It is recognized that this conclusion 
reflects a judgment regarding the likelihood of individuals being 
exposed to multiple sources with cumulative doses approaching 1 mSv/y 
(100 mrem/y) rather than an analysis based on probability distributions 
for such exposures. However, considering the kinds of occupancy time 
typically assumed for the average member of the critical group at a 
site, it is highly unlikely that individuals could realistically be 
expected to experience exposures to other sources with a cumulative 
effect approaching 1 mSv/y (100 mrem/y).
    A.2.2.3  Cost and practicality of standard. Comments received on 
cost and practicality were analyzed to determine whether such an 
analysis can provide additional information related to the criteria of 
this rule. This analysis includes how, and to what level, ALARA efforts 
should be made, how the proposed decommissioning objective of returning 
a site to background should be applied, and what provisions should 
there be (e.g., restricted use) for sites where it is unreasonable or 
unwise to attain the unrestricted dose criterion.
    Some commenters criticized the proposed rule for including 
considerations of cost-effectiveness, objecting to using cost in 
decisionmaking. Other commenters criticized the rule because, although 
they favored use of cost-benefit analyses in decisionmaking, they 
believed that the cost-benefit analysis in the draft GEIS and draft 
Regulatory Analysis (RA) was inadequate to justify a 0.15 mSv/y (15 
mrem/y) dose criterion because it used an improper approach (i.e., 
combining the building and soil analysis). They also believed that it 
underestimated the amount of contamination at reference facilities, as 
well as the costs of remediation and final site closeout surveys.
    The Commission considered the concerns of commenters who criticized 
inclusion of cost as a consideration in decisionmaking. NRC methods and 
policy regarding cost considerations are stated in NUREG/BR-0058, Rev. 
2, and call for preparation of an appropriate regulatory analysis in 
support of regulatory decisions. NUREG/BR-0058 does note that costs 
cannot be considered for regulatory actions necessary to ensure 
adequate protection of the health and safety of the public; however, it 
further notes that costs can be a factor in those cases where there may 
be more than one way to reach a level of adequate protection. Thus, the 
analysis in the GEIS and RA was prepared in support of the rulemaking 
to provide additional information to decisionmakers about the rule 
criteria being considered.
    The Commission has also considered the concerns of those commenters 
that criticized the analysis of costs and risks as incomplete and 
inadequate and reviewed information submitted in support of those 
comments. In general, some of the major comments suggested, and 
provided data on, the following:
    (a) Additional data from actual decommissionings should be included 
that would consider variations in site contamination characteristics, 
including the concentration and volume of contamination and the profile 
of the contamination with depth;
    (b) Reevaluation of remediation and survey costs should be 
conducted, including consideration of variation in waste burial 
charges, remediation methods, and survey procedures;
    (c) Separate analyses of the cost-effectiveness of soil removal and 
building removal should be performed. A commenter illustrated that 
separate analyses would clarify differences between costs and impacts 
of cleanup of soils and structures that were not obvious in the Draft 
GEIS. Commenters also suggested deleting the ``knee-in-curve'' approach 
as not clearly illustrating the information regarding costs and impacts 
for cleanup of both soils and structures; and
    (d) Potential alternative uses of the site lands and facilities 
should be considered to provide a higher level of realism in the dose 
estimates. These alternative uses can result in variations in direct 
exposure and ingestion pathways and in the number of persons exposed 
and thus the collective exposure and net health effects.
    Based on the comments and information received, additional 
information has been added to the GEIS. Data on contamination submitted 
by the commenters were reviewed, compared with other existing data, 
including that in the Draft GEIS, and incorporated into the Final GEIS 
as appropriate. The Final GEIS thus considers additional soil 
contamination data as well as soil and building contamination 
comparable to that in the draft GEIS. It also considers the range of 
disposal costs and survey methods and costs presented in the Draft 
GEIS, as well as those suggested in the comments. The Commission agrees 
with the commenters that consideration of soil and buildings separately 
can provide added information. Thus the Final GEIS has used the 
analysis of the Draft GEIS, that contained the data for performing 
separate analyses, and has presented the data more clearly in revised 
tables. In addition, the ``knee-in-curve'' figures, that provided 
general information about behavior of costs and impacts associated with 
cleanup, have been replaced with a simpler set of tables similar to the 
presentation in the Draft Regulatory Analysis, in Tables 6.1 and 6.2. 
In response to comments suggesting that the Final GEIS consider more 
realistic post decommissioning uses, the Final GEIS considers a range 
of possible uses, including residential farming, denser residential 
use, industrial/office use, and higher building occupancy rates.
    Given the range of possible parameters, scenarios, and site-
specific situations, the Final GEIS concludes, in a manner similar to 
the Draft GEIS, that there is a wide range of cost-benefit results 
among the different facilities and within facility types and that there 
is no unique algorithm that decisively produces an ALARA result for all 
facilities. Despite these difficulties, the Final GEIS and RA provide 
the following results that can be helpful for gaining insight in making 
decisions regarding ALARA, the decommissioning objective, and whether 
restricted use should be permitted:
    (a) Achieving, as an objective of ALARA, reduction to preexisting 
background. The objective of returning a site to preexisting background 
conditions is consistent with the concept of returning a site to the 
radiological condition that existed before its use. However, the 
question of whether this objective, as a goal of ALARA, should be 
codified by rule depends on a variety of factors,

[[Page 39065]]

including cost, practicality (e.g., measurability) of achieving the 
objective, and the type of facility involved.
    As noted in Section 7.3.1 of the Draft GEIS, decommissioning is 
expected to be relatively easy for a certain class of non-fuel-cycle 
nuclear facilities (i.e., those that use either sealed radioactive 
sources or small amounts of short-lived nuclides), because there is 
usually no residual radioactive contamination to be cleaned up and 
disposed of, or, if there is any, it should be localized or it can be 
quickly reduced to low levels by radioactive decay. Decommissioning 
operations will generally consist of disposing of a sealed source or 
allowing licensed short-lived nuclides to decay in storage, submitting 
Form NRC-314, and demonstrating (either through radiation survey or 
other means such as calculation of reduction of the contamination level 
by radioactive decay) compliance with the requirements for license 
termination. Because contamination at these facilities is expected to 
be negligible or to decay to negligible levels in a short time, 
achieving an objective of returning these facilities to background 
would not appear to be an unreasonable objective of ALARA.
    However, in general, for those nuclear facilities where 
contamination exists in soils and/or structures, the Final GEIS 
analysis shows, in a manner similar to the Draft GEIS, that achieving 
an ALARA decommissioning objective of ``return to a preexisting 
background'' is not reasonable as it may result in net detriment or 
because cost cannot be justified because detriments and costs 
associated with remediation and surveys tend to increase significantly 
at low levels, while risk reduction from radiation exposure from 
criteria near background is marginal.
    (b) ALARA analysis for soil contamination. Soil contamination can 
exist onsite at nuclear facilities because of a variety of reasons 
including spills or leaks, deposition from airborne effluents, or 
burial or placement of system byproducts or other waste materials in 
onsite soils. The level of soil contamination for the large majority of 
NRC-licensed facilities (>6000) is either zero or minimal (it is 
expected that the large majority of Agreement State licensees would 
have similar contamination). Certain facilities (e.g., power reactors, 
fuel facilities, industrial facilities) may have greater soil 
contamination, and certain of these facilities have been identified as 
having extensive soil contamination (albeit generally at relatively low 
levels) and have been placed in the Site Decommissioning Management 
Plan (SDMP) (see NUREG-1444, October 1993). These sites warrant 
specific NRC attention regarding their decommissioning.
    For the generic scenarios considered, the results of the Final GEIS 
evaluation indicate that there is a wide range of possible cost-benefit 
ratios. Nevertheless, there appears to be a strong indication that 
removing and transporting soil to waste burial facilities to achieve 
exposure levels at the site at or below a 0.25 mSv/y (25 mrem/y) 
unrestricted use dose criterion is generally not cost-effective when 
evaluated using NRC's regulatory analysis framework presented in NUREG/
BR-0058 and NUREG-1530. Further, even for a range of cleanup levels at 
or above a 0.25 mSv/y (25 mrem/y) criterion, there can also be cases 
where costs are unreasonable in comparison to benefits realized.
    (c) ALARA analysis for structures containing contamination. 
Building floors and walls at nuclear facilities can be contaminated for 
a variety of reasons, including system leaks, spills, tracking, and 
activation. The large majority of NRC licensed facilities have zero or 
limited building contamination. Generally, contamination does not 
penetrate the surface of concrete and can be readily removed by water 
jets or concrete scabbling. If the building is reused for some new 
industrial, office, or other use after license termination, persons can 
be in direct contact with the decommissioned floors and walls.
    For the range of generic situations considered, the results of the 
Final GEIS evaluation indicate that there is a wide range of possible 
cost-benefit ratios. It appears that cleanup of concrete to levels at 
or below 0.25 mSv/y (25 mrem/y) can be cost effective, depending on the 
number of individuals projected to be occupying a building, when using 
the decisionmaking guidelines of NUREG/CR-0058 and NUREG-1530.
    A.2.3  Conclusions regarding overall approach to license 
termination and unrestricted dose criterion. Based on the above 
discussion, the Commission has concluded that the overall license 
termination approach of this final rule should include:
     An unrestricted use dose criterion of 0.25 mSv/y (25 mrem/
y) applicable on a generic basis without site-specific analysis;
     Considerations regarding ALARA, including the 
decommissioning objective;
     A tiered approach of unrestricted use and allowing 
restricted use if certain provisions are met; and
     Codifying alternate criteria in the rule to alleviate the 
need for exemptions in certain difficult site-specific circumstances.
    The reasons for these conclusions are discussed in the following 
subsections.
    A.2.3.1  An unrestricted use dose criterion of 0.25 mSv/y (25 mrem/
y) applicable on a generic basis without site-specific analysis. For 
the reasons described above, the Commission is establishing a dose of 
0.25 mSv/y (25 mrem/y) as an acceptable criterion for release of any 
site for unrestricted use without further analysis of the potential for 
exposures from other man-made sources excluding medical. The Commission 
concludes that a generic dose constraint or limitation for 
decommissioning sources of 0.25 mSv/y (25 mrem/y) for unrestricted use 
of a site appears reasonable from the standpoint of providing a 
sufficient and ample margin of safety in protection of public health 
and safety. This conclusion reflects the Commission's judgment that the 
likelihood of individuals being exposed to multiple sources with 
cumulative doses approaching 1 mSv/y (100 mrem/y) is quite small. This 
conclusion is based on consideration of the kinds of occupancy times 
generally expected for the average member of the critical group at 
typical decommissioned sites and the low probability that individuals 
could realistically be expected to experience significant exposures to 
other sources, particularly with a cumulative effect approaching 1 mSv/
y (100 mrem/y). In view of these perspectives, the Commission believes 
that a generic dose criterion of 0.25 mSv/y (25 mrem/y) provides a 
sufficient and ample, although not necessary, margin to protect the 
public.
    A.2.3.2  Considerations regarding ALARA, including the 
decommissioning objective. The ICRP, NCRP, and draft FRG all suggest 
that, in addition to setting a constraint value for an individual 
source, achievement of exposures that are ALARA should continue to be 
considered as a means of optimization. For this reason and because the 
generic analysis of the Final GEIS tends to indicate that achieving 
doses below 0.25 mSv/y (25 mrem/y) may be ALARA for some cases, the 
rule continues to require an ALARA evaluation below the unrestricted 
dose criterion.
    It would be useful if the analyses in the Final GEIS could have 
arrived at a value of ALARA for all facilities or classes of facilities 
so that no further estimate of ALARA would be needed in site-specific 
cases. However, it was not feasible for the Commission to use the

[[Page 39066]]

results of the Final GEIS to determine a generic optimum ALARA dose 
because of the variety of possible scenarios, assumptions, parameters, 
and site-specific conditions that could exist. Nevertheless, the Final 
GEIS does contain information about certain trends in impacts and costs 
of decommissioning that can be useful in preparation of regulatory 
guidance supporting site-specific ALARA provisions. In particular, it 
is clear from the Final GEIS that removal of soil to achieve dose 
levels below the 0.25 mSv/y (25 mrem/y) dose criterion is generally 
unlikely to be cost-effective, whereas it may be for concrete in 
certain cases. It is also clear that removal of soil or concrete to 
``pre-existing background'' levels is generally not cost effective.
    Thus, for those facilities where soil or building contamination 
exists, it would be extremely difficult to demonstrate that an 
objective of return to background had been achieved. Therefore it is 
concluded, as was previously done in the proposed rule, that for these 
sites use of the unrestricted dose criterion with appropriate ALARA 
considerations would be appropriate. For restricted use, the Final GEIS 
suggests that although removal of soil to achieve dose levels below 
0.25 mSv/y (25 mrem/y) may not be cost-effective, other simple and less 
costly measures to restrict the use of the site such as fencing or 
barrier plantings may be cost-effective and should be considered as 
part of the ALARA process. For groundwater contamination, as discussed 
later in Section IV.D, ALARA considerations should consider the 
situation where populations use groundwater plumes from a facility as 
drinking water.
    In actual situations, it is likely that, even if no specific 
analysis of ALARA were required for soil and concrete removal, the 
actual dose will be reduced to below 0.25 mSv/y (25 mrem/y) because of 
the nature of the removal process. For example, the process of 
scabbling of concrete removes a layer of concrete that likely contains 
a large fraction of the remaining radioactivity, and the process of 
soil excavation is a gross removal process that also is likely to 
remove large fractions of the radioactivity.
    To clarify the concept of ALARA, the regulatory guidance to be 
prepared will refer to the existing requirements of Secs. 20.1003 and 
20.1101 where ALARA is defined to include considerations of the state 
of technology, economics of improvement in relation to the state of 
technology, economics of improvements in relation to benefits to the 
public health and safety, and other societal and socio-economic 
considerations. Although preparation of guidance is in a preliminary 
stage, it is anticipated that this guidance would likely indicate that 
ALARA during decommissioning should include typical good practice 
efforts (e.g., floor and wall washing, removal of readily removable 
radioactivity in buildings or in soil areas), as well as ALARA analyses 
for buildings to levels less than 0.25 mSv/y (25 mrem/y) based on the 
number of individuals projected to be occupying the building, but that 
an ALARA analysis below 0.25 mSv/y (25 mrem/y) for soil removal would 
not need to be done. It is expected that use of the dose criterion of 
the final rule and the regulatory guidance on ALARA would achieve 
consistency with current practices where it is cost-effective to do so.
    The Commission also believes that, in any ALARA analysis conducted 
to support decisions about site cleanup, all reasonably expected 
benefits and detriments resulting from the cleanup activities should be 
taken into consideration in balancing costs and benefits. An example of 
such a detriment would be transportation deaths that might occur as 
contaminated waste is transported away from the site.
    A.2.3.3  Tiered approach of unrestricted use and allowing 
restricted use if certain provisions are met. It appears reasonable to 
retain the basic structure presented in the proposed rule and allow for 
both unrestricted and restricted use of sites. Allowance of restricted 
use is appropriate because there can be situations where restricting 
site use can provide protection of public health and safety by reducing 
the TEDE to 0.25 mSv/y (25 mrem/y) in a more reasonable and cost-
effective manner than unrestricted use. This protection is afforded by 
limiting the time period that an individual spends onsite or by 
restricting agricultural or drinking water use. For many facilities, 
the time period needed for restrictions can be fairly short; i.e., long 
enough to allow radioactive decay to reduce radioactivity to levels 
that permit release for unrestricted use. For example, at reactors, 
manufacturing facilities, or broad scope licensees, where the principal 
contaminants can have half-lives of 5-30 years (e.g., Co-60, Cs-137), 
restricting site use for about 10-60 years can result in achieving 
unrestricted use levels. Thus, it continues to be appropriate to allow 
restricted use if accompanied by provisions that ensure the 
restrictions remain in place to achieve a dose of 0.25 mSv/y (25 mrem/
y). Considerations for assuring that restrictions remain in place and 
that public health and safety is protected are discussed further in 
Section IV.B. In addition, because restricting site use can affect the 
local community, Sections IV.B and IV.E indicate that licensees should 
seek advice from such affected parties and, in seeking that advice, 
provide for: (1) Participation by representatives of a broad cross 
section of community interests, (2) an opportunity for a comprehensive, 
collective discussion on the issues, and (3) a publicly available 
summary of the results of all such discussions.
    A.2.3.4  Codifying alternate site-specific criteria in the rule to 
alleviate the need for exemptions in special circumstances. The 
preamble to the proposed rule recognized that there could be certain 
difficult sites presenting unique decommissioning problems where 
licensees would seek exemptions from the rule's requirements. However, 
as noted in Section IV.C below, because the Commission finds that it 
would be preferable to deal with those facilities under the aegis of a 
rule rather than as exemptions, the Commission has included in its 
final rule a provision under which the Commission may terminate a 
license using alternate criteria in certain specific cases. In allowing 
such a provision, it is nevertheless the Commission's judgment that: 
(1) It is generally preferable for sites to reduce doses to 0.25 mSv/y 
(25 mrem/y) due to the uncertainty over the number of sources where 
nuclides may be present for a long time-frame; (2) the large majority 
of sites can reduce doses to less than 0.25 mSv/y (25 mrem/y) through 
restricting site use; and (3) permitting large numbers of licensees to 
propose alternate criteria is not advisable because it would be 
contrary to one of the goals of this rulemaking to achieve more 
efficient and consistent licensing actions. Therefore, the Commission 
has limited the conditions under which a licensee could apply for 
alternate criteria and expects that its use would be rare. A licensee 
proposing to terminate a license at a site-specific level above 0.25 
mSv/y (25 mrem/y) would be required to:
    (a) Provide assurance that public health and safety would continue 
to be protected by means of a complete and comprehensive analysis of 
possible sources of exposure so that it is unlikely that the dose from 
all potential man-made sources combined, other than medical, would 
exceed the 1 mSv/y (100 mrem/y) public dose limit of 10 CFR part 20;

[[Page 39067]]

    (b) Employ, to the extent practical, restrictions on site use for 
minimizing exposures at the site using the provisions for restricted 
use outlined in Section IV.B, below; and
    (c) Reduce doses to ALARA levels.
    (d) Seek advice from affected parties regarding this approach and, 
in seeking such advice, provide for: (1) Participation by 
representatives of a broad cross section of community interests who may 
be affected by the decommissioning, (2) an opportunity for a 
comprehensive, collective discussion on the issues, and (3) a publicly 
available summary of the results of all such discussions, and
    (e) Obtain the specific approval of the Commission. The Commission 
will make its decision on allowing use of alternate criteria in 
specific cases only after consideration of the NRC staff's 
recommendations that will address any comments provided by the 
Environmental Protection Agency and any public comments submitted 
regarding the decommissioning or license termination plan.
    A description of these circumstances and potential resolutions on a 
site-specific basis, short of exempting a facility from this rule, 
appears in Section IV.C.
    If license termination still cannot be met even under alternate 
criteria, it may be necessary for the site (or a portion thereof) to be 
kept under license in order to ensure that exposures to the public are 
appropriately monitored. The evaluation of the maintenance of a site or 
a portion thereof under a continued license is outside the scope of 
this rulemaking because this rule contains provisions addressing 
radiological criteria that apply to termination of a license.
    A.2.4  Summary of rule revisions on unrestricted use and plans for 
implementation. The final rule has been modified to indicate that the 
dose criterion for unrestricted use is 0.25 mSv/y (25 mrem/y). 
Requirements that a licensee consider how the ALARA requirements of 10 
CFR part 20 can be applied to achieve a dose below the dose criterion 
have been retained.
    Regulatory guidance is planned on how to meet these existing ALARA 
requirements. In addition, to assist in implementing the dose 
criterion, regulatory guidance will also be issued to provide clear 
guidance to licensees on how to demonstrate compliance with the dose 
criterion by using either:
    (a) Screening analyses that use relatively simple approaches for 
demonstrating compliance; or
    (b) Site-specific modeling for more complex sites and 
contamination. Regulatory guidance will also be issued to provide clear 
guidance on statistical tests and survey methods available to licensees 
for demonstrating compliance.
    The Commission is retaining the distinguishable from background 
provision in the final rule to allow release of sites when residual 
contamination, if any, cannot be distinguished from background on a 
statistical basis using proper survey techniques. In particular, at the 
levels of the dose criterion, concentrations of uranium and thorium in 
soil are extremely low and may not be distinguishable from background 
on a statistical basis even when using proper survey techniques.
A.3  General Comments on the Dose Criterion
    A.3.1  Comments. Comments were received on the 0.15 mSv/y (15 mrem/
y) dose criterion that questioned its effect on disposal capacity, the 
relationship to naturally occurring radioactive material (NORM), and 
the issue of fixing the responsibility for cleanup.
    A.3.2  Response. Some commenters were concerned about the effect of 
0.15 mSv/y (15 mrem/y) criterion on disposal capacity. As noted in 
Section IV.A.2.2, several of the assumptions, models, and approaches in 
the GEIS and Regulatory Analysis have been revised to include 
additional data and alternate waste disposal costs. A complete 
discussion of these revisions and analysis of disposal capacity is in 
the Final GEIS and the Regulatory Analysis.
    Some commenters questioned the relationship of this rule to NORM. 
In response, the criteria of this rule apply to residual radioactivity 
from activities under a licensee's control and not to naturally 
occurring background radiation. Issues related to NRC-licensed sites 
containing materials that occur in nature are discussed in Sections 
IV.B and IV.C.
    There is a wide variety of sites containing NORM subject to EPA 
jurisdiction and not licensed by the NRC. The extent to which criteria 
in this rule would apply to these sites would be based on a separate 
evaluation although certain aspects of the rule, for example control of 
sites with restrictions imposed, could be similar. For further 
discussion, see also Section IV.G.6.
    With regard to responsibility for cleanup, several commenters 
stated that the 0.15 mSv/y (15 mrem/y) limit is too high because 
licensees should have to clean up contamination that they created. 
Because these are final licensing actions before releasing the site to 
the public, they stated that only a lower criterion such as return to 
background would adequately protect the public. In response, the NRC 
agrees with the need to fix responsibility for decommissioning of 
licensed sites. The planning and financial assurance requirements 
adopted June 27, 1988 (53 FR 24018), recognized the responsibility of 
licensees to plan for the cleanup of their sites and to provide 
adequate financial assurance for that cleanup. Similarly in this 
regulation, licensees are not permitted to release a facility for 
unrestricted or restricted public use unless the dose criteria 
stipulated in the rule have been satisfied. As noted in the Final GEIS, 
further cleanup to levels such as background is not generally 
reasonable because it results in very little additional health benefit 
with very large costs incurred and could result in an increase in the 
overall risk associated with cleanup of a particular site when all 
factors (e.g., estimated fatalities due to transportation accidents 
during transport of radioactive wastes) are considered. Therefore, for 
the reasons discussed in Section IV.A.2.2, the criteria in the final 
rule are considered appropriate to protect public health and safety and 
to permit release of the sites and termination of license.
A.4  Average Member of the Critical Group
    A.4.1  Comment. Some commenters agreed with provisions of the rule 
that would apply the dose limit to an average member of the critical 
group rather than to the ``reasonably maximally exposed (RME) 
individual'' because it is consistent with ICRP and provides an 
appropriate protection standard. Other commenters objected to use of 
``an average member of the critical group.'' These commenters favored 
applying the dose limit to the most exposed person rather than to an 
average person. They asserted that this would be consistent with the 
approach used for other licensed activities and environmental 
protection.
    A.4.2  Response. Section 20.1003 of the proposed rule defined the 
term ``critical group'' as the group of individuals reasonably expected 
to receive the greatest exposure to residual radioactivity for any 
applicable set of circumstances. For example, if a site were released 
for unrestricted use, the critical group would be the group of 
individuals reasonably expected to be the most highly exposed 
considering all reasonable potential future uses of the site. As noted 
in the preamble to the proposed rule (at 59 FR 43218; August 22, 1994), 
NUREG/CR- 5512 defines the critical group as an individual or 
relatively homogeneously exposed

[[Page 39068]]

group expected to receive the highest exposure within the assumptions 
of a particular scenario and the dosimetric methods of 10 CFR part 20. 
The average member of the critical group is an individual who is 
assumed to represent the most likely exposure scenario based on 
prudently conservative exposure assumptions and parameter values within 
model calculations. For example, the critical group for the building 
occupancy scenario can be the group of regular employees working in a 
building that has been decontaminated. If a site were converted to 
residential use, the critical group could be persons whose occupations 
involve resident farming at the site, not an average of all residents 
on the site.
    Although the terms ``critical group'' and ``average member'' are 
new terms in NRC regulations, they are consistent with ICRP practice of 
defining and using a critical group when assessing individual public 
dose from low levels of radioactivity similar to those expected from a 
decommissioned site. ICRP recommends that such analyses should consider 
exposure to individuals representative of those expected to receive the 
highest dose using cautious but reasonable assumptions. This approach 
has been adopted in the proposed FRG and is also consistent with the 
recommendations of the National Academy of Sciences on the Yucca 
Mountain Standards (August 1995).
    A.4.3  Summary of rule revisions. Based on this discussion, the 
proposed rule has not been changed.

B. Criteria for Restricted Use (Proposed Rule Secs. 20.1402(d) and 
20.1405)

B.1  Proposed Rule Content
    As described in the proposed rulemaking and restated in Section 
IV.A.2.2, there are potential situations under which termination of a 
license under restricted conditions could be used in the 
decommissioning of a site. Proposed Sec. 20.1405 indicated that a site 
would be considered acceptable for license termination under restricted 
conditions if the licensee:
    (1) Made provisions for institutional controls that provide 
reasonable assurance that the TEDE to the average member of the 
critical group would not exceed the unrestricted use dose criterion;
    (2) Reduced residual radioactivity at the site so that, if the 
controls were no longer in effect, there is reasonable assurance that 
the TEDE would not exceed 1 mSv/y (100 mrem/y);
    (3) Demonstrated that complying with the unrestricted use dose 
criterion would be prohibitively expensive, result in net public or 
environmental harm, or not be technically achievable;
    (4) Obtained advice on the restrictions from the affected community 
by convening a site-specific advisory board, and;
    (5) Provided financial assurance to ensure the controls remain in 
place.
B.2  Comments on Acceptability of Restricted Use for Decommissioned 
Sites
    A variety of comments was received on the restricted use option. 
The major comment categories are listed below. Although the comment 
categories address somewhat separate issues, they are listed and 
answered together to develop a unified response on the issue of 
restricted use.
    B.2.1  The general concept of restricted use. Some commenters 
agreed with the proposal to permit restricted use of decommissioned 
sites because it may be financially impractical to reach unrestricted 
levels, especially if health and safety considerations do not warrant 
it and because restricted release allows realistic land uses to be 
considered. Some commenters opposed the concept of any planned 
restricted release of decommissioned sites because of concerns over the 
durability and effectiveness of institutional controls, and because 
license termination should be a final action with full licensee 
responsibility for site disposition and cleanup costs previously 
considered.
    B.2.2  The need for licensees to demonstrate that restricted use is 
appropriate for their sites. In allowing restricted use, the proposed 
rule would have required licensees to demonstrate the appropriateness 
of restricting site use for their particular situation by showing that 
it would be ``prohibitively expensive,'' ``technically unachievable,'' 
or cause ``net public or environmental harm'' to achieve unrestricted 
use (proposed Sec. 20.1405(a)). Some commenters supported the 
restricted use of sites but indicated that the proposed requirements 
for demonstrating its appropriateness were unreasonably restrictive. 
These commenters stated that the provisions in proposed Sec. 20.1405(a) 
were structured so narrowly that few sites would be able to qualify for 
license termination under restricted conditions. Commenters stated that 
these terms should be explained, deleted, or replaced with a less 
onerous requirement allowing restricted use if justified by an ALARA 
analysis or if there were continued ownership and industrial use of the 
site.
    B.2.3  The durability of institutional controls. Several commenters 
opposed or expressed concern about the ability of institutional 
controls to provide needed protection of public health and safety at 
decommissioned sites because they cannot be enforced indefinitely into 
the future and can be struck down or become ineffective. Other 
commenters favored reliance on more flexible institutional controls and 
recommended that the rule should not assume that they will eventually 
fail. Approaches for using institutional controls were suggested 
including Federal Government ownership of sites or legislative 
solutions for complex sites similar to the National Waste Policy Act 
(NWPA) of 1982.
    B.2.4  The 1 mSv/y (100 mrem/y) cap if institutional controls fail. 
Some commenters stated that the proposed 1 mSv/y (100 mrem/y) 
restriction is unreasonably low when used to assess the worst case 
scenario. They recommended that the rule should not stipulate that a 
licensee must assume that all institutional controls will eventually 
fail. Alternatively, they recommended that a 5 mSv/y (500 mrem/y) 
backup limit be allowed if restrictions such as institutional controls 
or engineered features fail. The commenters believed that a 5 mSv/y 
(500 mrem/y) limit is consistent with other regulations, since 
residential use of an industrial site is unlikely, and failure of 
controls is speculative. Several commenters objected to the last 
sentence of proposed Sec. 20.1405(d), that stated that licensees may 
not assume any benefits from an earthen cover, other earthen barriers, 
or engineered controls in complying with the 1 mSv/y (100 mrem/y) cap 
unless specifically authorized by the Commission and recommended that 
the sentence be deleted. Some commenters recommended that the rule 
specify the extent to which licensees may take credit for engineered 
barriers. Other commenters stated that 1 mSv/y (100 mrem/y) is too high 
and that a lower value (e.g., 0.15, 0.3, 0.5, 0.75 mSv/y (15, 30, 50, 
or 75 mrem/y)) should be applied because institutional controls are 
uncertain, concerns over health effects would exist, and doses in 
excess of 40 CFR Part 190 are unreasonable. Some commenters agreed with 
establishing a maximum TEDE of 1 mSv/y (100 mrem/y) in the event 
institutional controls are no longer in effect.
    B.2.5  Financial assurance for restricted use. Some commenters 
questioned the need for financial assurance provisions and suggested 
that more flexibility be provided for

[[Page 39069]]

licensees. Other commenters questioned whether the financial assurance 
provisions were adequate. One commenter stated that there should be 
more detail on financial assurance provided in the rule.
B.3  Response
    B.3.1  The general concept of restricted use. Current NRC 
regulations pertaining to decommissioning, issued on June 27, 1988 (53 
FR 24018), do not contain provisions for release of a facility for 
restricted use but limit a licensee's options in decommissioning to 
release of a facility for unrestricted use. Experience with 
decommissioning of facilities since 1988 has indicated that for certain 
facilities, achieving unrestricted use might not be appropriate because 
there may be net public or environmental harm in achieving unrestricted 
use, or because expected future use of the site would likely preclude 
unrestricted use, or because the cost of site cleanup and waste 
disposal to achieve unrestricted use is excessive compared to achieving 
the same dose criterion by restricting use of the site and eliminating 
exposure pathways. The input received from the rulemaking workshops 
held from January through May 1993 confirmed this experience and 
indicated that restricted use of a facility, if properly designed and 
if proper controls were in place, was a reasonable means for 
terminating licenses at certain facilities.
    Current NRC-licensed sites that might request restricted use are 
largely industrial sites. It is reasonable for them to remain 
industrial because of their locations and previous siting 
considerations. Nevertheless, there may be instances where, if a site 
had high cultural value, such considerations would be presented as part 
of the public input that is part of the process of restricted use (see 
Section IV.E) and could be considered as a socioeconomic effect under 
the ALARA process.
    The proposed rule thus provided for both unrestricted and 
restricted use of sites. Both the Draft and Final GEIS provide 
discussions of the environmental impact of decommissioning for the 
reference sites and of the costs related to decommissioning. From this 
it may be concluded that release of certain facilities for restricted 
use is an appropriate option assuming the presence of the specific 
provisions described below to ensure that appropriate controls are in 
place so that the restrictions on use remain in effect.
    B.3.2  The need for licensees to demonstrate that restricted use is 
appropriate for their sites. As described in Section IV.B.3.1, the 
proposed rule allowed restricted use because release of a site under 
restricted conditions can be an appropriate method of decommissioning 
from both health and safety, and cost-benefit bases, especially for 
certain facilities with soil contamination. Nevertheless it did so 
under the philosophy (stated in Sec. 20.1402(d)) that, in general, 
termination of a license for unrestricted use is preferable because it 
requires no additional precautions or limitations on use of the site 
after licensing control ceases, in particular for those sites with 
long-lived nuclides. In addition, there may be societal or economic 
benefits related to future value of the unrestricted use of the land to 
the community. Thus, Sec. 20.1405(a) of the proposed rule stated the 
provisions the NRC would consider in evaluating a request for 
termination of a site under restricted conditions, including that it is 
``prohibitively expensive'' or there is ``net public or environmental 
harm'' in achieving unrestricted release.
    The Commission continues to believe that unrestricted use is 
generally preferable for the reasons noted. However, the NRC has 
reexamined the provisions for allowing restricted use because of the 
potential benefits. In explaining the provision of ``prohibitive'' 
cost, the proposed rule noted (at 59 FR 43220) that costs to achieve 
unrestricted use may be ``excessive,'' indicating that this means there 
may be situations where removal and disposal of large quantities of 
material is simply ``not reasonable'' from a cost standpoint. 
Consistent with this, the proposed rule noted in Sec. 20.1402(d) that 
the Commission expected licensees to make every reasonable effort to 
achieve unrestricted release. The specific cost that would be 
considered excessive, not reasonable, or prohibitive was not included 
in the proposed rule. This value depends on costs of unrestricted and 
restricted use, and on an evaluation of these alternatives using the 
regulatory analysis framework presented in NUREG/BR-0058 and NUREG-
1530. NUREG/BR-0058 provides a decisionmaking tool for deciding between 
regulatory alternatives. As noted in the discussion below, restricted 
use with appropriate institutional controls (accompanied by sufficient 
provisions for ensuring their effectiveness) can provide protection of 
public health and safety because the dose level will be reduced to the 
same 0.25 mSv/y (25 mrem/y) criterion as for unrestricted use. Thus, 
use of the guidelines in NUREG/BR-0058 is appropriate for determining 
whether restricted use should be permitted. Therefore, the Commission 
has modified the rule to incorporate an ALARA standard rather than 
prohibitive costs as the basis for selecting restricted use. To support 
a request for restricted use, a licensee would perform an ALARA 
analysis of the risks and benefits of all viable alternatives and 
include consideration of any detriments. This could include estimated 
fatalities from transportation accidents that might occur as the result 
of transport of wastes from cleanup activities, and societal and 
socioeconomic considerations such as the potential value to the 
community of unrestricted use of the land.
    The proposed rule also noted that because the net public or 
environmental damage through removal, transport, and disposal of 
materials could be larger than the benefit in dose reduction at the 
site, it may be more reasonable for the material to remain onsite. The 
Final GEIS illustrates when it may be inappropriate, when considering 
such relative impacts, to completely remediate a site to an 
unrestricted level that assumes activities such as farming or 
residence, and then, as would be the case for a number of currently 
licensed sites, actually employ a commercial or industrial use that 
would eliminate significant pathways of exposure. Specific examples 
include reactors or other materials facilities where the dose is 
controlled by relatively short-lived nuclides (e.g., Co-60 and Cs-137 
with half-lives of 5.3 and 30 years, respectively) that will decay to 
unrestricted dose levels in a finite time period of institutional 
control (e.g., about 10-60 years). For these facilities, there may be 
net public or environmental harm from removing and transporting soil to 
achieve unrestricted use compared to restricting use for a period of 
time associated with a reasonable decay period (see the Final GEIS, 
Chapter 6). Thus, the consideration of potential detriments from 
cleanup activities and the possibility of net harm have been retained 
in the final rule. Both terms, net public harm and net environmental 
harm, are retained in the final rule to indicate that a licensee's 
evaluation should consider the radiological and nonradiological impacts 
of decommissioning on persons who may be impacted, as well as the 
potential impact on ecological systems from decommissioning activities.
    B.3.3  The durability of institutional controls. As described in 
Sections IV.B.3.1 and IV.B.3.2, use of restrictions that employ 
institutional controls appears appropriate in specific

[[Page 39070]]

situations. However, an important question raised in the public 
comments relates to the durability of institutional controls, i.e., 
whether the controls provide reasonable assurance that the exposure 
will be limited to the dose criterion in the rule over the periods in 
question.
    For many types of decommissioned sites released under restricted 
conditions where potential doses to an individual are caused by 
relatively short-lived nuclides, the radiation exposure that could 
potentially be received were controls to fail will gradually decrease 
to below the unrestricted dose criterion so the restrictions on use 
would no longer be necessary. Examples of facilities with nuclides of 
this type include reactors or materials facilities for which the 
principal dose contributing nuclides after decommissioning are Co-60 or 
Cs-137 (half-lives 5.3 and 30 years, respectively), or other similarly 
short-lived nuclides. The Commission has considered the effectiveness 
of institutional controls for up to 100 years in similar contexts such 
as low-level waste disposal sites. Because decommissioned facilities 
will have minimal contamination compared to large volumes buried at 
low-level disposal sites, the Commission believes that institutional 
controls using relatively simple deed restrictions can provide 
reasonable assurance that the TEDE will be below the 0.25 mSv/y (25 
mrem/y) dose criterion with restrictions in place.
    In a limited number of cases, in particular those involving large 
quantities of uranium and thorium contamination, the presence of long-
lived nuclides at decommissioned sites will continue the potential for 
radiation exposure beyond the 100-year period. More stringent 
institutional controls will be required in these situations, such as 
legally enforceable deed restrictions and/or controls backed up by 
State and local government control or ownership, engineered barriers, 
and Federal ownership, as appropriate. Federal control is authorized 
under Section 151(b) of the National Waste Policy Act (NWPA). Requiring 
absolute proof that such controls would endure over long periods of 
time would be difficult, and the Commission does not intend to require 
this of licensees. Rather, institutional controls should be established 
by the licensee with the objective of lasting 1000 years to be 
consistent with the time-frame used for calculations (and discussed in 
Section IV.F.7). Having done this, the licensee would be expected to 
demonstrate that the institutional controls could reasonably be 
expected to be effective into the foreseeable future.
    To provide added assurance that the public will be protected, the 
final rule incorporates provisions (Sec. 20.1405(c)) for financial 
assurance to ensure that the controls remain in place and are effective 
over the period needed. With these provisions, the Commission believes 
that the use of reliable institutional controls is appropriate and that 
these controls will provide a high level of assurance that doses will 
not exceed the dose criterion for unrestricted use.
    Although the Commission believes that failure of active and passive 
institutional controls with the appropriate provisions in place will be 
rare, it recognizes that it is not possible to preclude the failure of 
controls. Therefore, in the proposed rule, the Commission included a 
requirement that remediation be conducted so that there would be a 
maximum value (``cap'') on the TEDE from residual radioactivity if the 
institutional controls were no longer effective in limiting the 
possible scenarios or pathways of exposure. The cap included in the 
proposed rule was 1 mSv/y (100 mrem/y), which is the public dose limit 
codified in 10 CFR part 20. Public comments on the proposed rule 
suggested other values for the cap, both higher than and lower than the 
proposed value. The analysis of those comments, and their potential 
effect on the institutional controls used, is discussed in Section 
IV.B.3.4.
    The Commission believes, based on the discussion in this section on 
the viability of controls and on the provisions for financial assurance 
and for a ``cap,'' described in Sections IV.B.3.4 and IV.B.3.5, that 
the provision for restricted use and institutional controls will 
provide a high level of assurance that public health and safety will be 
protected. Licensees seeking restricted use will be required to 
demonstrate, to NRC's satisfaction, that the institutional controls 
they propose are comparable to those discussed above, are legally 
enforceable, and are backed by financial assurance. Licensees will also 
be required to demonstrate that the cap will be met. The Commission 
believes that the provision for restricted use should be retained in 
the final rule.
    B.3.4  The 1 mSv/y (100 mrem/y) cap if institutional controls fail. 
A ``cap'' of 1 mSv/y (100 mrem/y), corresponding to the public dose 
limit, was proposed in Sec. 20.1405(d) of the proposed rule. Various 
possible ``cap'' values were suggested by the commenters, both lower 
than (e.g., values such as 0.15, 0.3, or 0.85 Sv/y (15, 30, or 85 mrem/
y)) or higher than the proposed cap.
    The Commission has reviewed the comments suggesting that the 
specific cap value be set at levels other than 1 mSv/y (100 mrem/y). 
The rationale for setting the cap at 1 mSv/y (100 mrem/y) presented in 
the proposed rule (at 59 FR 43221) was that the value of the cap 
coincides with NRC's public dose limit of 10 CFR Part 20. This value 
was premised on the assumption that circumstances could develop in 
which the restrictions might no longer be effective in limiting the 
exposure scenarios or pathways. Although this occurrence need not be 
assumed for planning purposes, a safety net is needed to prevent 
exposures in excess of the public dose limits. A cap using the public 
dose limits would provide an additional level of protection in the 
unlikely event that restrictions were not effective. Although, as noted 
in Section IV.A.2, the Commission has used a fraction of the public 
dose limit in setting the 0.25 mSv/y (25 mrem/y) dose limit for 
decommissioning, it indicated in the proposed rule that, in the case of 
the ``cap'' or ``safety net,'' it did not believe that fractionation, 
i.e., setting a cap value less than 1 mSv/y (100 mrem/y), would be 
necessary because:
    (a) The 1 mSv/y (100 mrem/y) cap is less than values suggested in 
the proposed FRG for members of the public in unusual circumstances and 
less than values used for other types of facilities where some type of 
institutional control is used;
    (b) The Commission believes that failure of all site restrictions 
at decommissioned sites is a highly unlikely event; and
    (c) Radioactive decay for relatively short-lived nuclides (e.g., 
Co-60 and Cs-137), that are the principal dose contributing 
contaminants at the large majority of NRC licensed facilities, will 
actually reduce the dose level over a period of time for most sites 
that will provide an additional margin of safety equivalent to 
fractionation of the limit.
    The rationale for setting a cap value at 1 mSv/y (100 mrem/y) 
continues to appear appropriate. In addition, setting a cap at a lower 
value does not appear warranted because: (1) It appears arbitrary to 
assume that the same person would be an average member of the critical 
group both near a facility where there was failure of controls and near 
another decommissioned facility; and (2) the failure of restrictions 
would be infrequent and therefore it is likely that the overall 
lifetime risk to the critical group would still be maintained at levels 
comparable to unrestricted use

[[Page 39071]]

while providing a more cost-effective use of resources.
    Although the Commission did not fractionate the cap, it did include 
in the proposed rule, and continues to include in the final rule, a 
provision that would require exposures to be below the cap to a degree 
that is ALARA. The purpose of this requirement is that licensees would 
not simply leave behind contamination corresponding to the value of the 
cap but would evaluate the level below the cap that is cost effective 
and reduce the contamination to that level. This will provide a 
requirement that will effectively fractionate the doses and result in 
doses not dissimilar from those suggested by the commenters if it is 
cost-effective to do so. This approach is consistent with the current 
requirements in 10 CFR part 20.
    Based on its experience with sites with difficult contamination 
issues, in particular those sites treated in NRC's SDMP, and as 
described in the Final GEIS, the Commission anticipates that there may 
be sites where compliance with the 1 mSv/y (100 mrem/y) cap could cause 
impacts resulting from cleanup to that level (e.g., estimated 
industrial or traffic fatalities associated with removing or 
transporting waste) that exceed the benefits of averting radiation 
exposure (thus causing a net detriment to public health or the 
environment) or that diminish the net benefit to where costs of cleanup 
would be prohibitive compared to the net benefit. Although the NRC 
recognizes that it is always the licensee's responsibility to clean up 
the contamination that it has caused, the appropriate course of action 
should not result in net public or environmental harm from a cleanup, 
and it is not clear that it is beneficial if resources are spent in a 
manner prohibitive in relation to other benefits which could be 
achieved, or if a licensee is put into a financial position where it 
cannot continue to perform the cleanup safely.
    Although a cap higher than 1 mSv/y (100 mrem/y) would result in 
using a value in excess of the public dose limit in Sec. 20.1301(a), 
existing requirements in Sec. 20.1301(c) permit levels up to values of 
5 mSv/y (500 mrem/y), provided that a licensee would apply to the 
Commission for permission to operate at that level, submit reasons why 
it is necessary, and indicate procedures to maintain doses ALARA. The 
proposed FRG, Recommendation No. 4, states that the dose from all 
sources should not exceed 1 mSv/y (100 mrem/y) although it may be 
exceeded temporarily in unusual situations that are not expected to 
recur.
    Based on this existing requirement, the Commission has incorporated 
a specific provision in the final rule under which a licensee could 
propose exceeding the 1 mSv/y (100 mrem/y) cap in unusual site-specific 
circumstances if, in addition to the normal provisions of restricted 
use, it also met the following additional stringent provisions:
    (a) A licensee would have to demonstrate that it cannot meet the 1 
mSv/y (100 mrem/y) cap because of net public or environmental harm or 
prohibitive costs by means of a site-specific evaluation of the issues 
associated with complying with the 1 mSv/y (100 mrem/y) cap. The NRC 
expects that only a very few facilities (e.g., sites with soil 
contaminated with naturally occurring radionuclides in small 
radioactivity levels but large volumes, certain SDMP sites) could 
provide sufficient rationale for seeking a higher cap. Although the 
proposed rule contained a reference to the use of prohibitive cost, it 
did not quantify or define these costs beyond noting that they would be 
excessive or unreasonable. The Commission believes it appropriate to 
consider a prohibitive cost to be one that would be an order of 
magnitude greater than that contained as part of the decisionmaking 
guidelines in NUREG/BR-0058, although a lower factor may be appropriate 
in specific situations when a licensee could become financially 
incapable of carrying out decommissioning safely;
    (b) Under these circumstances, the licensee would be required to 
reduce contamination so doses would be no greater than the 5 mSv/y (500 
mrem/y) value currently contained in Sec. 20.1301(a). Also, the actual 
dose level to which the licensee would have to clean the site would be 
less than that value based on an ALARA evaluation of the site. This 
provision is consistent with existing requirements in Sec. 20.1301(c) 
that permit levels up to values of 5 mSv/y (500 mrem/y) for specific 
cases;
    (c) Durable institutional controls must be in place. These controls 
could include significant engineered barriers and/or State, local, or 
Federal Government control of sites or maintenance of site deed 
restrictions so that site access is controlled. Under Section 151(b) of 
the NWPA of 1982, the DOE has already been authorized to take 
possession of waste disposal sites in certain situations. A similar 
provision in Section 151(c) was used as the vehicle to transfer custody 
of the Amax site from Amax to DOE;
    (d) A licensee would make provisions for a verification of the 
continued effectiveness of institutional controls at the site every 5 
years after license termination to ensure that the institutional 
controls are in place and the restrictions are working, and that there 
is financial assurance to reestablish controls if the recheck indicates 
otherwise. This 5-year recheck is consistent with 10 CFR Part 20 and 
also with the FRG, Recommendation No. 4, that states that in some 
unusual situations the 1 mSv/y (100 mrem/y) may be exceeded temporarily 
in situations that are not anticipated to recur. It is also consistent 
with the approach for institutional controls used in CERCLA that allows 
for release of sites without a cap providing there is continuous 
checking on the status of the controls.
    The NRC would retain the authority to take appropriate action in 
those unusual situations when both the 5 mSv/y (500 mrem/y) cap was in 
effect and the controls had failed. This action might include oversight 
of actions needed to reinstate the controls and any necessary cleanup 
and/or monitoring actions.
    B.3.5  Financial assurance. As a second provision for ensuring that 
the institutional controls provide protection of public health and 
safety, financial assurance requirements were included to ensure that 
funds will be available to enable an independent third party, including 
a governmental custodian of a site, to implement and ensure continued 
effectiveness of institutional controls. Some commenters questioned 
whether these provisions were necessary while others questioned whether 
they went far enough. In response, the Commission continues to believe 
the proposed provisions are reasonable and adequate for their purpose. 
The provisions are consistent with financial assurance requirements 
currently in 10 CFR Parts 30, 40, 50, 61, 70, and 72 which call for 
financial assurance to provide funds for decommissioning in cases when 
licensees might otherwise be financially unable to remediate a site. 
Reference to an independent third party is necessary in the regulations 
because after the license is terminated, the licensee may no longer be 
the party ensuring the effectiveness of the controls. Because the 
purpose of this provision is to provide broad requirements for 
financial assurance necessary to ensure that the controls continue to 
limit the dose, more specific details are not included in the rule. The 
level of detail in the rule is similar to that in other similar NRC 
regulations on financial assurance. As requested by a commenter, the 
funding provisions include a trust fund (or similar funding mechanism) 
for

[[Page 39072]]

surveillance and enforcement of the institutional controls. The 
financial assurance requirements must be in place before the license is 
terminated and be flexible enough to allow for the necessary site-
specific details.
B.4  Summary of Rule Revisions on Restricted Use
    Based on the discussions above, restricted use has been retained in 
the final rule. Based on its analyses in the Final GEIS and its 
experiences with actual decommissioned sites, the Commission recognizes 
that, although unrestricted use is generally preferred, restricted use 
(when properly designed in accordance with the rule's provisions 
discussed in Section IV.B.3) can provide a cost-effective alternative 
to unrestricted use for some facilities and maintain the dose to the 
average member of the pertinent critical group at the same level. Thus, 
the Commission has replaced the prohibitively expensive provision for 
justifying restricted use with a reasonable cost provision. The net 
harm provision remains the same. The general cap value has been 
retained at 1 mSv/y (100 mrem/y) as has the requirement that licensees 
reduce the actual level of contamination to levels as far below the cap 
as is ALARA, where appropriate. The rule has been modified to allow for 
exceeding the 1 mSv/y (100 mrem/y) cap in site-specific situations and 
under specific provisions. No change has been made to the financial 
assurance provisions of the rule.
    A number of comments were also received on public participation 
aspects of restricting site use. The final rule will require that 
licensees proposing to decommission by restricting use of a site shall 
seek advice from individuals and institutions in the community who may 
be affected by the decommissioning and that, in seeking that advice, 
the licensee shall provide for: (1) Participation by representatives of 
a broad cross section of community interests who may be affected by the 
decommissioning; (2) an opportunity for a comprehensive, collective 
discussion on the issues by the participants represented; and (3) a 
publicly available summary of the results of all such discussions, 
including a description of the individual viewpoints of the 
participants on the issues and the extent of agreement and disagreement 
among the participants on the issues. The details of the comments 
received and the rationale for the public participation aspects of the 
final rule are discussed in Section IV.E.

C. Alternate Criteria for License Termination

C.1  Codifying Provisions for Certain Facilities That the Proposed Rule 
Suggested Exempting
    C.1.1  Proposed rule content. The preamble to the proposed rule 
noted that there were several existing licensed sites where public 
health and the environment may best be protected by use of alternate 
criteria, although these situations were not codified in the proposed 
rule; rather, it was thought that these facilities might seek 
exemptions (under Sec. 20.2301) from the criteria of this rule.
    C.1.2  Comments. Some commenters recommended that the rule should 
not apply to any facility that possesses large volumes of low-level 
contaminated wastes (including SDMP sites) and should provide a 
specific exemption or exemption procedures for the ``tens'' of existing 
facilities for which application of the proposed criteria is 
inappropriate and too restrictive. Commenters suggested that guidance 
is needed on sites that should be turned over to the Federal Government 
after license termination and sites that should be kept under license. 
Commenters also recommended that NRC ask Congress to amend the NWPA of 
1982 to allow Federal ownership of extensively contaminated sites. 
Other commenters objected to exempting facilities from the proposed 
radiological criteria and stated that the rule should cover all 
decommissioning cases.
    C.1.3  Response. For the very large majority of NRC-licensed sites, 
the Commission believes that the 0.25 mSv/y (25 mrem/y) unrestricted 
and restricted use dose criterion in the rule is an appropriate and 
achievable criterion for decommissioning.
    However the Commission is concerned about the possible presence of 
certain difficult sites presenting unique decommissioning problems. 
Licensees of these sites who would have sought exemptions to the 
proposed rule's criteria would have had to follow processes similar to 
the other facilities covered by the rule. In addition, licensing 
efficiency, consistency of application of requirements, and oversight 
of these facilities can best be achieved by codifying application of 
criteria to all facilities. Therefore, the Commission believes that it 
is preferable to codify provisions for these facilities under the aegis 
of the rule rather than requiring licensees to seek an exemption 
process outside the rule as was contemplated in the proposed 
rulemaking.
    In addition, as discussed in Section IV.A, the Commission has 
concluded that for any site where the 0.25 mSv/y (25 mrem/y) dose 
criterion is met, there will be a very low likelihood that individuals 
who use the site will be exposed to multiple man-made sources combined, 
excluding medical, with cumulative doses approaching 1 mSv/y (100 mrem/
y). Thus, the discussion in Section IV.A of this notice establishes 
this level as a sufficient and ample, but not necessary, margin of 
safety.
    Based on these considerations, the Commission has included in the 
final rule a provision under which the Commission may terminate a 
license using alternate criteria in its final rule. The Commission 
expects the use of alternate criteria to be confined to rare 
situations. Therefore, for the reasons previously listed in Section 
A.2.3.4, the Commission has limited the conditions under which a 
licensee would apply to the NRC for, or be granted use of, alternate 
criteria to unusual site-specific circumstances subject to the 
following provisions:
    (a) A licensee must provide assurance that, for the site under 
consideration, it is unlikely that the dose to an average member of the 
critical group for that site from all potential man-made sources 
combined, other than medical, would exceed the 1 mSv/y (100 mrem/y) 
public dose limit of 10 CFR Part 20. The Commission envisions that a 
licensee proposing to use alternate criteria will have to provide a 
complete and comprehensive analysis that would build upon generic 
considerations such as those discussed in Section IV.A.2, and also 
include site-specific considerations. To guide the Commission in its 
review of such analyses, the NRC is continuing to develop generic 
information on the potential for exposure to radioactivity from various 
sources, including decommissioned sources, to supplement currently 
available knowledge, and is planning to make this information publicly 
available through publication of a NUREG report. Site-specific factors 
that the Commission might review in such cases could include soil and 
aquifer characteristics, the nature of the critical groups likely to 
use the site, the detailed nature of the contamination patterns at the 
site, and the characteristics of residual radionuclides remaining at 
the site, including considerations related to whether the nuclides are 
long-lived or short-lived;
    (b) A licensee will employ, to the extent practical, restrictions 
on site use for minimizing exposure at the site using the provisions 
for restricted use

[[Page 39073]]

outlined in IV.B, above, and in Sec. 20.1403;
    (c) A licensee will indicate that a comprehensive analysis had been 
performed of the risks and benefits of all viable alternatives and 
consideration of any detriments, such as transportation fatalities that 
might occur as the result of cleanup activities, to reduce the residual 
radioactivity at the site to levels that are ALARA;
    (d) A licensee will seek advice from affected parties regarding 
this approach. In seeking such advice, the licensee will provide for: 
(1) Participation by representatives of a broad cross section of 
community interests who may be affected by the decommissioning; (2) an 
opportunity for a comprehensive, collective discussion on the issues by 
the participants represented; and (3) a publicly available summary of 
the results of all such discussions, including a description of the 
individual viewpoints of the participants on the issues and the extent 
of agreement and disagreement among the participants on the issues (the 
rationale for these public participation aspects are discussed in more 
detail in Section IV.E); and
    (e) A licensee will obtain the specific approval of the Commission 
for the use of alternate criteria. The Commission will make its 
decision after consideration of the NRC staff's recommendations that 
will address any comments provided by the Environmental Protection 
Agency and any public comments submitted regarding the decommissioning 
or license termination plan.
    If the license termination conditions under alternate criteria 
cannot be met, it may be necessary for the site (or portion thereof) to 
be kept under license to ensure that exposures to the public are 
appropriately monitored. The evaluation of maintenance of a site or a 
portion of that site under continued license is outside the scope of 
this rulemaking because this rule contains provisions, including 
radiological criteria, that apply to termination of a license.
    With regard to the comment on the NWPA, it should be noted that 
Section 151(b) of the NWPA already authorizes ownership by the U.S. 
Department of Energy, if NRC makes certain determinations. Therefore, 
no further legislation is needed to grant this authority. The rule 
language has been clarified to ensure that this authority may be 
implemented by NRC and DOE.
    C.1.4  Summary of revisions to rule on codifying provisions for 
certain facilities. The rule has been modified to include the use of 
alternate criteria in specialized circumstances and under the 
provisions described above.
C.2  Exclusion of Uranium/Thorium Mills Proposed in Sec. 20.1401(a)
    C.2.1  Proposed rule content. The proposed rule stated that, for 
uranium mills, the criteria of the rule apply to the facility but do 
not apply to the disposal of uranium mill tailings or to soil cleanup. 
The proposed rule referred to 10 CFR Part 40, Appendix A, where 
criteria already exist (Sec. 20.1401(a)).
    C.2.2  Comments. Comments on the proposed rule generally agreed 
with the exclusion for disposal of mill tailings and soil cleanup. 
Commenters also recommended that the rule exempt conventional thorium 
and uranium mill facilities and in situ leach (ISL) (specifically 
uranium solution extraction) facilities from the scope of coverage 
because they stated that the decommissioning of these sites is covered 
by Appendix A to 10 CFR part 40 and 40 CFR part 192.
    C.2.3  Response. Currently, there are regulations applicable to 
remediation of both inactive tailings sites, including vicinity 
properties, and active uranium and thorium mills. Under the Uranium 
Mill Tailings Radiation Control Act (UMTRCA) of 1978, as amended, EPA 
has the authority to set cleanup standards for uranium mills and, based 
on that authority, issued regulations in 40 CFR part 192 which contain 
remediation criteria for these facilities. NRC's regulations in 10 CFR 
part 40, Appendix A, apply to the decommissioning of its licensed 
facilities and conform to EPA's standards for uranium mills. At ISLs, 
the decommissioning activities are similar to those at uranium mills 
and consist mainly of the cleanup of byproduct material as defined in 
Section 11e.(2) of the Atomic Energy Act of 1954, as amended.
    Thus, applicable cleanup standards already exist for soil cleanup 
of radium in 10 CFR part 40, Appendix A, Criterion 6(6). Radium is the 
main contaminant at mills in the large areas (20-400 hectares (50 to 
1000 acres) for uranium mills) where windblown contamination from the 
tailings pile has occurred, and at ISLs (in holding ponds). These 
standards require that the concentration of radium in those large areas 
not exceed the background level by more than 0.19 Bq/gm (5 pCi/gm) in 
the first 15 cm (6 inches) of soil, and 0.56 Bq/gm (15 pCi/gm) for 
every 15 cm (6 inches) below the first 15 cm (6 inches). Cleanup of 
radium to these concentrations would generally result in doses higher 
than the unrestricted use dose criterion of this rulemaking, although, 
in actual practice, cleanup of uranium mill tailings results in radium 
levels lower than the 10 CFR part 40 standards, and radium is usually 
removed to background levels during cleanup of uranium and thorium to 
the levels in existing NRC guidance documents.
    However, in other mill and ISL site areas proximate to locations 
where radium contamination exists (e.g., under the mill building, in a 
yellow cake storage area, under/around an ore pad, and at ISLs in soils 
where spray irrigation has occurred as a means of disposal), uranium or 
thorium would be the radionuclide of concern. A difficulty in applying 
10 CFR part 40, Appendix A, as a standard for uranium and thorium, is 
that it does not have any cleanup standards for soil contamination from 
radionuclides other than radium. Application of the decommissioning 
dose criterion of the final rule to these areas (while retaining the 10 
CFR 40, Appendix A, standard for radium) would result in a situation 
where the cleanup standard of that small portion of the mill site would 
be lower than the standard for the large windblown tailings areas where 
radium is the nuclide of concern. This would result in situations of 
differing criteria being applied across essentially the same areas and 
would be a problem for contamination existing both in uranium mill 
soils and buildings.
    The Commission has considered the most appropriate means to address 
requirements for cleanup at uranium and thorium mills and ISLs 
(collectively referred to as UR facilities) for unrestricted release of 
the site other than tailings disposal and reclamation subject to the 
requirements of 10 CFR part 40, Appendix A. One way would be to include 
criteria for UR facilities as part of this rulemaking. However, as 
noted above, there are complexities associated with decommissioning of 
these unique facilities which could cause practical problems in 
applying the standards of this rulemaking to UR facilities. Therefore, 
the Commission has decided to exclude UR facilities from the scope of 
this rulemaking.
    To allow for full consideration by the Commission and affected 
parties of the issues associated with decommissioning UR facilities and 
of the regulatory options listed above, the Commission is publishing a 
separate notice in this Federal Register reopening the comment period 
to specifically request additional comment on the regulatory options 
for decommissioning criteria for UR facilities. The Commission is not 
reopening the comment period for any other issue discussed in this 
Federal

[[Page 39074]]

Register notice. In the interim, the Commission will continue its 
current practices for decommissioning UR facilities.
    C.2.4  Summary of rule revisions for uranium/thorium mills. The 
Commission is excluding uranium/thorium mills from the scope of this 
rulemaking and is publishing a separate notice requesting additional 
comment on the specific standard for license termination of UR 
facilities.
C.3  Other Exemptions
    C.3.1  Comments. Commenters suggested certain other exemptions be 
specifically provided for in the rule including:
    (1) Licensees that possess and hold only sealed sources or limited 
quantities; and
    (2) Radioactive waste materials disposed of in accordance with NRC 
regulations in formerly used Secs. 20.302 and 20.304 because ALARA was 
applied on a site-specific basis for these facilities.
    Other commenters disagreed and stated that all such waste must be 
decommissioned. In addition, there were commenters who stated that 
exemption procedures should be spelled out.
    C.3.2  Response. No exemption from the rule for sealed source or 
limited quantity users is necessary. Under provisions of 10 CFR Parts 
30, 40, and 70, Secs. 30.36(c)(1)(v), 40.42(c)(1)(v), and 
70.38(c)(1)(v), the licensee could provide assurance that building or 
soil contamination has never occurred or demonstrate that the level of 
radioactive material contamination in the facility conforms with 
screening criteria.
    With regard to burials, as discussed in the preamble to the 
proposed rule, the determination of whether the licensee meets the 
radiological criteria of the final rule includes consideration of all 
residual radioactivity at the site, including burials made in 
conformance with 10 CFR part 20 (both existing Sec. 20.2002 and 
formerly used Secs. 20.302 and 20.304). This is consistent with prior 
Commission statements made in the preamble to the 1988 rulemaking on 
general requirements for decommissioning (53 FR 24018; June 27, 1988) 
and in promulgation of the final rule on timeliness of decommissioning 
(59 FR 36026; July 15, 1994). More recent past burials (1981 to 
present) were frequently made in conformance with guidelines defined in 
``Onsite Disposal of Radioactive Waste,'' NUREG-1101, Volumes 1 through 
3. This guidance was based on a maximum annual whole body or critical 
organ dose of 0.25 mSv (25 mrem). Although numerically similar to the 
existing low-level waste disposal criteria in 10 CFR part 61, the 
Commission believes that, as a whole, the regulations applicable to 
low-level waste disposal sites are much more restrictive than those 
applicable to onsite burials. The pathway parameters on which NUREG-
1101 is based may not be comparable to those used to define the rule's 
unrestricted release criteria. Nevertheless, case-by-case analysis of 
the potential radiological impacts could indicate that leaving the 
burials in place could be consistent with unrestricted or restricted 
release of the affected site. For past burials that have involved long-
lived nuclides, site-specific modeling may also justify leaving these 
burials in place. Thus, the Commission sees no reason to specifically 
exempt these burials from consideration under this final rule but would 
continue to require an analysis of site-specific overall impacts and 
costs in deciding whether or not exhumation of previous buried waste is 
necessary for specific sites. In addition, the general exemption 
provisions of 10 CFR part 20 are available to consider unique past 
burials on a case-by-case basis.
    With regard to specific provisions in the rule for exemptions, the 
Commission is not convinced that a significant number of exemptions to 
the unrestricted or restricted use provisions of the final rule will be 
necessary. The Commission believes that the options in this rule for 
release under alternate criteria and the flexibility contained in the 
rule including the use of realistic site-specific screening and 
modeling provide licensees with sufficient latitude.

D. Groundwater Protection Criteria (Proposed Rule Sec. 20.1403)

D.1  Proposed Rule Content
    The proposed rule (Sec. 20.1403(d)) indicated that a licensee must 
demonstrate a reasonable expectation that residual radioactivity from 
the site will not cause the level of radioactivity in groundwater that 
is a current or potential source of drinking water to exceed the limits 
specified in 40 CFR part 141. This groundwater requirement would have 
been in addition to the proposed dose criterion for unrestricted use 
and was included as part of the proposed rule on EPA's recommendation. 
The preamble to the proposed rule solicited responses to three specific 
questions on this proposal, including whether a separate standard was 
appropriate as a supplement to an overall radiological dose criterion 
that applies to all exposure pathways.
D.2  Use of EPA Drinking Water Standards in NRC Rule
    D.2.1  Comments. A number of commenters disagreed with the 
inclusion of a separate groundwater requirement. In response to the 
specific questions asked, many of these commenters stated that a 
separate requirement for groundwater was not necessary if the rule 
included an all-pathways standard. A commenter also noted that 
application of Maximum Contaminant Levels (MCLs) to groundwater was 
inappropriate because the MCLs of EPA's drinking water standards were 
based on outdated dosimetry (ICRP2) and were applicable to public water 
systems rather than to groundwater directly. Other commenters supported 
establishing a separate groundwater requirement as being consistent 
with the EPA standard.
    D.2.2  Response. As noted in Section IV.D.1, the NRC's proposed 
rule included separate requirements for groundwater protection. The NRC 
staff has reviewed the public comments on its proposed rule, including 
the EPA comments supporting the separate requirement, has reviewed the 
bases and rationale for a separate groundwater standard, and has 
conducted further technical analyses of groundwater protection in the 
Final GEIS.
    As described in some detail in Section IV.A.2.2, there were three 
broad considerations that provided the overall rationale for the 
proposed rule's contents. The first two considerations were related to 
the health and safety aspects, and the third was related to cost and 
practicality aspects. As was done in Section IV.A.2.2, regarding the 
establishment of unrestricted and restricted dose criteria, this 
section reexamines these three considerations in the context of 
determining appropriate groundwater cleanup requirements for 
decommissioning.
    With regard to the first two considerations, as described in 
Section IV.A.2.2, above, this final rule contains acceptable criteria 
(including the dose criterion for unrestricted use, and provisions for 
ALARA, restricted use, and alternate site-specific criteria) to protect 
the public from radiation from all of the pathways that they could be 
exposed to from a decommissioned facility (e.g., direct exposure to 
radiation, ingestion of food, inhalation of dust, and drinking water). 
The bases used in selecting the dose criterion for this final rule are 
stated in Section IV.A.2.
    The dose criterion codified in Sec. 20.1402 of this final rule 
limits the amount of radiation that a person can

[[Page 39075]]

potentially receive from all possible sources at a decommissioned 
facility. Therefore, it is an ``all-pathways'' standard. Examples of 
these pathways include:
    (a) Direct exposure to radiation from material on the soil surface;
    (b) Eating food grown in the soil and eating fish from surface 
waters;
    (c) Inhalation of dust from soil surfaces; and
    (d) Drinking water obtained from the groundwater.
    Because equivalent doses received through any pathways of exposure 
would involve equivalent risks to the person exposed, NRC concludes the 
following with regard to the need to set a separate standard for 
groundwater:
    (a) There is no reason from the standpoint of protection of public 
health and safety to have a separate, lower dose criterion for one of 
the pathways (e.g., drinking water) as long as, when combined, the dose 
from all the pathways doesn't exceed the total dose standard 
established in the rule;
    (b) A standard imposed on a single pathway, such as drinking water, 
may have been appropriate in the past for site cleanups when a dose-
based standard for decommissioning did not exist. It may also be 
appropriate for chemical contamination when no total limit on exposure 
exists. However, NRC's final rule on decommissioning would issue an 
overall TEDE criterion for all radionuclides combined and for all 
pathways of exposure combined, including drinking water, thus removing 
the need for a single-pathway standard for groundwater. This is a more 
uniform method for protecting public health and safety than was 
contained in NRC's proposed rule that set separate requirements using 
the MCLs contained in 40 CFR part 141. This is because the MCL 
requirements do not cover all radionuclides and do not provide a 
consistent risk standard for different radionuclides as will be 
provided by adoption of a single dose criterion in the final rule. In 
addition, the MCLs are based on a modeling approach that has not been 
updated to reflect current understandings of the uptake and doses 
resulting from ingestion of radionuclides through drinking water.
    The Commission agrees with the commenters that exposures from 
drinking contaminated groundwater need to be controlled; with the EPA's 
groundwater protection principles contained in the document 
``Protecting the Nation's Groundwater: EPA Strategy for the 1990's,'' 
212-1024 (July 1991); and with the EPA position that the environmental 
integrity of the nation's groundwater resources needs to be protected. 
Nonetheless, it is the Commission's position that protection of public 
health and safety is fully afforded by limiting exposure to persons 
from all potential sources of radioactive material by means of a TEDE 
at a decommissioned facility. There is, therefore, no compelling reason 
to impose a separate limit on dose from the drinking water pathway, and 
the rule has been modified to delete a separate groundwater standard. 
To make clear NRC's concern over the importance of protecting this 
resource as a source of potential public exposure, the rule has also 
been modified to include a direct reference to the groundwater pathway 
in the all-pathways unrestricted use dose criterion in Sec. 20.1402.
    In actual situations, based on typical operational practices of 
most nuclear facilities and on the behavior of radionuclides in the 
environment for the very large majority of sites, concentrations of 
radionuclides in the groundwater will be well below the dose criterion 
of this final rule and would be either below or only marginally above 
the MCLs codified in 40 CFR Part 141 as referenced in the proposed NRC 
rule. For example, because the large majority of NRC licensees either 
use sealed sources or have very short-lived radionuclides, it is highly 
unlikely that contamination from these facilities would reach the 
groundwater. Even for facilities like reactors or certain industrial 
facilities, whose major contaminants are relatively short-lived 
nuclides like Co-60 or Cs-137, the migration of these nuclides through 
soil is so slow that it precludes groundwater contamination of any 
significance. In addition, it is not anticipated that decommissioned 
nuclear facilities will be located near enough to public water 
treatment facilities so that treatment facilities would be affected by 
the potential groundwater contamination from decommissioned facilities.
    As further described in Section IV.A.2, the Commission is basing 
its decision on analyses in the Final GEIS, that consider cost and 
practicality factors, to provide additional information regarding 
decisions on issues such as achieving ALARA levels below the dose 
criterion of Sec. 20.1402 and allowing restricted use. These analyses 
also consider how these issues relate to groundwater cleanup, including 
how, and to what level, ALARA efforts should be made, and if, and in 
what manner, restrictions on use should be considered. The analysis of 
impacts to populations and the cost of remediating those impacts is 
particularly important for groundwater because this resource can be 
used in a variety of public uses away from the site being 
decommissioned. The Final GEIS draws from NRC's experience and the 
public comments regarding contaminated sites. In particular, 
considerations with regard to groundwater remediation include potential 
remediation methods such as removal of soil to preclude prospective 
contamination, pump and treat processes for the cleanup of existing 
groundwater contamination, and the supply of alternate sources of 
drinking water, as well as a consideration of administrative costs 
associated with predicting and measuring levels of contaminated 
groundwater.
    Because of the range of possible parameters, scenarios, and site-
specific situations, Section IV.A.2 notes that the analyses in the 
Final GEIS indicate that there is a wide range of cost-benefit results 
and there is no unique algorithm that is a decisive ALARA result for 
all facilities. This finding is especially true for groundwater 
contamination where the behavior of radionuclides in soil and in the 
aquifer is highly site-specific; much more so than in concrete. The 
results of the overall considerations of Section IV.A.2 for all 
pathways would be applicable to the groundwater component. As pointed 
out in Section IV.A.2.3.2, it is intended that the regulatory guidance 
to be developed to support the final rule will provide guidance on 
these considerations. Although preparation of this guidance is in a 
preliminary stage, it is anticipated that this guidance would likely 
indicate that reducing doses to values less than the dose criterion of 
0.25 mSv (25 mrem/y) is generally not likely to be cost-effective when 
evaluated using NRC's regulatory analysis framework presented in NUREG/
BR-0058 and NUREG-1530, although there may be ALARA considerations for 
sites with a relatively large population obtaining all their drinking 
water from the site plume.
    D.2.3  Summary of rule revisions on groundwater and plans for 
implementation. Based on the above, the Commission concludes that 
application of a separate groundwater protection limit, in addition to 
the all pathways dose limit, is not necessary or justified and has 
deleted this requirement from its final rule.
    As noted above, regulatory guidance to be prepared in support of 
the final rule will likely describe site-specific conditions under 
which an ALARA analysis could identify the need to consider reducing 
the dose below the unrestricted use dose criterion (e.g., large 
existing population deriving its

[[Page 39076]]

drinking water from a downstream supply using a downstream plume).

E. Public Participation (Proposed Rule Secs. 20.1406 and 20.1407)

E.1  Proposed Rule Content
    The proposed rule included a general requirement in Sec. 20.1406(a) 
that upon receipt of a decommissioning plan or proposal for restricted 
use from a licensee, the NRC must notify and solicit comments from 
local and State governments and Indian nations in the vicinity of the 
site and publish a notice in a forum that is readily accessible to 
persons in the site vicinity to solicit comments from affected parties.
    The proposed rule also contained additional requirements, in 
Secs. 20.1406(b) and 20.1407, for decommissionings when the licensee 
does not propose to achieve unrestricted release (i.e., instead 
restrict site use after license termination). In those cases, the 
licensee would be required to convene a site-specific advisory board 
(SSAB) for the purpose of obtaining advice from affected parties on the 
decommissioning. The Commission envisioned that the advice obtained 
would address issues as to whether:
    (a) There are ways to achieve unrestricted release that would not 
be prohibitively expensive or cause net public or environmental harm;
    (b) Institutional controls proposed by the licensee will provide 
reasonable assurance that the TEDE does not exceed the dose criterion, 
will be enforceable, and will not impose an undue burden on affected 
parties; and
    (c) There is sufficient financial assurance to maintain the 
institutional controls.
    Public comments received on the general requirements related to 
notification and solicitation are discussed in Section IV.E.2. Comments 
received on the additional requirements on public participation for 
restricted use are discussed in Section IV.E.3.
E.2  General Requirements on Notification and Solicitation of Comments 
(Proposed Rule Sec. 20.1406(a))
    E.2.1  Comments. Several commenters supported the public 
notification requirements in proposed Sec. 20.1406(a). Other commenters 
stated that the proposed notification requirements exceeded 
requirements of the Administrative Procedures Act (APA) and that NRC 
has not demonstrated a health and safety need for these requirements. 
Suggestions for public participation offered by some commenters 
included that the public not only be informed but be able to 
participate effectively in all decommissioning cases, not just those 
related to SSABs. Other specific comments addressed the type and timing 
of the notification, meetings to be held, who should bear the cost of 
public participation, the availability of licensee documents, NRC's 
role, and the need for exemptions.
    E.2.2  Response. A variety of comments have been provided on this 
issue during all phases of this rulemaking from the earliest workshops 
through comments on the NRC staff draft rule (February 2, 1994; 59 FR 
4868) and the proposed rule, and in a workshop on public participation 
aspects of the rule held in December 1994. Comments provided in these 
forums have been similar to those noted above. A common theme of the 
December 1994 workshop was that there are many approaches for involving 
the public in the decommissioning process. Participants generally 
favored exploration of site-specific alternatives as opposed to 
generally mandated processes, like SSABs. Many commenters suggested 
that there was merit to having a public participation plan developed by 
the licensee in cooperation with interested parties so the public's 
participation could be tailored to the needs of the community and the 
licensee.
    The Commission agrees that public participation can be an important 
component for informing and involving the public. The Commission 
recognizes the potential benefit for all decommissionings and site 
releases of significant community concern to keep the public informed 
and educated about the status of decommissioning at a particular site 
and to elicit public concerns about the decommissioning process at that 
site. Based on the comments received and on a consideration of current 
Commission practices, the general provisions in Sec. 20.1405 that 
provide for notification of the public and government entities and 
solicitation of comment have not been modified although a specific 
reference to notifying and soliciting comments from the EPA has been 
added to Sec. 20.1405. The reason that the general provisions of 
Sec. 20.1405(a) have not been modified in response to the public 
comments received is because existing Commission policies and 
practices, coupled with the provisions of this rule and a recent 
rulemaking on power reactor decommissioning, appear reasonable by 
providing for public participation in the decommissioning and site 
release process. Specifically in the case of power reactors, as is 
noted in the preamble to the separate final rule entitled 
``Decommissioning of Nuclear Power Reactors'' that was published on 
July 29, 1996 (61 FR 39278), the Commission has held public meetings 
and informal hearings for plants undergoing decommissioning, even 
though limited formal requirements exist for this type of involvement. 
To codify those activities, that rule requires a public meeting to be 
held at the time of submittal of a reactor licensee's Post-Shutdown 
Decommissioning Activities Report (PSDAR) and requires that this 
meeting be noticed in a local public forum and held in the vicinity of 
the facility. The PSDAR must also be made available for public review 
and comment. In addition, a licensee is required to hold a public 
meeting on the License Termination Plan (LTP), that for power reactors 
now replaces the decommissioning plan, in the vicinity of the facility 
following notice of the meeting in a local public forum. The LTP is 
also required to be made available for public comment with full hearing 
rights under Subpart G or L of 10 CFR 2.1201, depending on the 
disposition of the spent fuel.
    Similarly, for materials facilities involving significant 
decommissioning efforts, the Commission has implemented efforts to 
inform and involve the public in the process. These efforts were 
intended to provide early and meaningful opportunities for public 
involvement in the decommissioning process. For example, the NRC staff 
has initiated public information meetings at the Parks Township shallow 
land disposal area and the Sequoyah Fuels Corporation facility and 
conducted public information roundtables at various sites. Stakeholder 
representatives are routinely invited to participate in roundtable 
discussions and information exchanges on the status and issues 
associated with the decommissioning project. These initiatives are 
consistent with the NRC staff's public responsiveness plan in NUREG/BR-
0199. Where appropriate, the Commission plans to use these public 
involvement mechanisms and other public information meetings and 
involvement efforts, such as community information boards, at other 
facilities in the future on a site-specific basis to address specific 
needs that exist in affected communities.
    Based on these considerations, current practices and procedures and 
existing rule provisions are appropriate to provide for public 
participation in the decommissioning and license termination process 
and to provide sufficient flexibility to accommodate different 
situations, and therefore the general requirements of Sec. 20.1405 on

[[Page 39077]]

notification and solicitation of comments have been retained. Sections 
20.1405 (a) and (b) provide for the notification of specific government 
entities and the public in the vicinity of the site when a licensee 
submits a LTP or decommissioning plan for any of the license 
termination approaches described in Section IV.A.2.3 or specifically 
proposes to use restricted use (see Section IV.B) or alternate criteria 
(see Section IV.C). The NRC will review public comments gathered by the 
licensee prior to final NRC actions on the licensee's request for 
license termination. A specific reference has been added in 
Sec. 20.1405(a) to provide for specific notification and solicitation 
of comment from EPA where the licensee proposes to use alternate 
criteria. To the extent that EPA has an interest in commenting on 
proposed decommissionings other than those under alternate criteria, 
EPA comments would be considered under the general notice and comment 
provisions of Sec. 20.1405.
    Specific additional requirements for public participation in cases 
where restricted use or alternate criteria are proposed by a licensee 
are discussed further in Section IV.E.3.
    E.2.3  Summary of rule revisions on general requirements on public 
participation and notifications. No overall changes were made to the 
provisions for public notification in the final rule, except to include 
specific reference to notifying and soliciting comments from the EPA 
where the licensee proposes to use alternate criteria for license 
termination.
E.3  Additional Requirements on Public Participation (Including Those 
for Restricted Use, for Alternate Criteria, and for Use of SSABs) 
(Proposed Rule Sec. 20.1406(b))
    E.3.1  Comments. Comments were specifically submitted on the 
requirement in Sec. 20.1406(b) for the use of SSABs. These comments 
were submitted both in response to the proposed rule, as well as in 
connection with the NRC workshop on SSABs held on December 6-8, 1994 
(see NUREG/CR-6307 for a summary of the workshop).
    Some commenters supported the proposed requirement in 
Sec. 20.1406(b) that would require licensees to convene a SSAB for 
restricted release of a site. Other commenters objected to the use of a 
SSAB in each case involving a restricted release of a site. These 
commenters expressed concern that use of SSABs was inconsistent with 
the timeliness rule or that exemptions or other relief from the 
timeliness rule would be needed; that a need for SSABs has not been 
demonstrated; and that SSABs are inconsistent with Federal Advisory 
Committee Act, Administrative Procedures Act, and Atomic Energy Act 
requirements. Commenters suggested alternatives to mandatory SSABs, 
such as addressing the need for a board in a public participation plan 
or providing more flexibility in deciding when to use SSABs. Some 
commenters indicated that use of SSABs should be extended to the 
unrestricted use of sites.
    E.3.2  Response. One of the major issues raised by the comments and 
in the workshop discussions on the SSAB was the advisability of 
mandating a specific public involvement mechanism such as a SSAB as 
opposed to establishing broad performance criteria that would allow the 
licensee flexibility in selecting the appropriate public involvement 
mechanism for a particular site. There was general agreement that 
flexibility was always desirable, in establishing meaningful 
performance criteria. However, it should be emphasized that some of 
those who supported the use of performance criteria did so only in the 
context of the expansion of the scope of licensee public involvement 
requirements, including an SSAB, to cover facilities beyond the 
restricted use category. An additional issue of concern to commenters 
was whether it was more appropriate for the licensee to establish the 
SSAB, as contemplated by the proposed rule, or whether the Commission 
should establish the SSAB. The resolution of this issue depends not 
only on the objectives that the Commission believes will be served by 
an SSAB, but also on what the Commission's broader responsibilities are 
in the public involvement area. This, in turn, relates to another issue 
raised by the commenters: the scope and duration of a SSAB's 
responsibilities.
    In proposing a requirement for obtaining advice from affected 
parties on restricted use, the Commission's objective is to involve 
diverse community interests directly with the licensee in the 
development of the LTP or decommissioning plan for a proposed 
restricted use decommissioning. Community concerns, as well as 
community-based knowledge on the appropriate selection of institutional 
controls, risk issues, and economic development, can be potentially 
useful in the development of the LTP or decommissioning plan. For 
Commission and licensee resources to be used efficiently, the 
Commission believes that this type of information should be considered 
and incorporated as appropriate into the LTP or decommissioning plan 
before the plan is submitted to the NRC for review. The licensee is the 
appropriate entity to accomplish this.
    In considering a requirement to convene a SSAB or similar group, 
the Commission has considered alternatives regarding the most effective 
way to ensure that the licensee considers the diversity of views in the 
community. Small group discussions can be a more effective mechanism 
than written comments or large public meetings for articulating the 
exact nature of community concerns, determining how much agreement or 
disagreement there is on a particular issue, and facilitating the 
development of acceptable solutions to issues. Also, the type of close 
interaction resulting from a small group discussion could serve the 
licensee well in developing a credible relationship with the community 
in which it is operating.
    Use of public participation methods is consistent with a variety of 
initiatives being undertaken both within NRC and at other Federal 
agencies regarding stakeholder involvement in the decommissioning 
process. Examples of community involvement at NRC-licensed sites being 
decommissioned under the SDMP are described above in Section IV.E.2.2. 
Similarly, several Federal agencies (including EPA, DOE, the Department 
of Defense (DOD)) that make up the Federal Facilities Environmental 
Restoration Dialogue Committee, in their evaluation of the cleanup of 
Federal facilities, have prepared a set of ``Principles for 
Environmental Cleanup of Federal Facilities,'' dated August 2, 1995. 
Principle No. 14 notes the need for agencies to provide for involvement 
of public stakeholders from affected communities in facility cleanup 
decisionmaking. It also notes that rather than being an impediment, 
meaningful stakeholder involvement has, in many instances, resulted in 
significant cleanup cost reductions.
    The Commission envisions that a process for obtaining advice from 
affected interests would provide the opportunity for public involvement 
in the important issues related to restricted use of a site similar to 
those described in Section IV.E.2.2. In particular, one of the 
important issues would likely be the unavailability of the site for 
full unrestricted public use. In its deliberations on the rule, the 
Commission has envisioned that the following should occur:
    (1) The licensee would present information to, and seek advice 
from, affected parties on the provisions for

[[Page 39078]]

limiting the dose to meet the criteria in the rule (e.g., limiting use 
to commercial/industrial use with elimination of the resident pathway), 
how the restrictions would be enforced (e.g., use of deed restrictions, 
engineered barriers, State or Federal control or ownership), the effect 
on the community, and the adequacy of the level of financial assurance 
(e.g., sufficient funds for maintenance of the deed or of fencing). In 
seeking such advice, a broad cross section of the affected parties in 
the community would be involved and there would be opportunity for a 
comprehensive discussion of the issues by those parties. The 
information presented would be similar to that which the rule would 
require the licensee to prepare and submit to NRC to demonstrate the 
appropriateness and safety aspects of the restrictions on site use.
    As an example, in the specific case where the nuclides involved are 
relatively short-lived (e.g., Co-60 and Cs-137), as discussed in 
Section IV.B.3, calculations could demonstrate that it is preferable to 
restrict use of the site for a finite time period to allow for 
radioactive decay than it is to ship large quantities of soil. These 
calculations would also show the length of time that the restrictions 
would need to remain in force to allow for radioactive decay to reduce 
residual levels below the unrestricted dose criterion. In addition, 
these calculations could show that restricting the site to industrial 
use through deed restrictions during this time period would eliminate 
or decrease certain pathways and limit the dose to less than the 0.25 
mSv/y (25 mrem/y) dose criteria in the rule. Finally, such an analysis 
could indicate that continued use of the site for an industrial purpose 
similar to its currently existing use should not adversely impact the 
community. Consideration of community advice on appropriate 
institutional controls for controlling access to the site during this 
decay period would provide the licensee with useful information in 
developing the necessary institutional controls. As part of the process 
of public participation, the licensee would make public a summary of 
the advice received and the results of the discussions on that advice.
    For more complex cases where large volumes of uranium/thorium 
contamination would remain under a form of restricted use, the long-
lived nature of these nuclides would result in the restrictions having 
to remain in force in the community for a long period of time. The 
information presented by the licensee would be similar to that for 
shorter-lived nuclides, including the rationale for how use of 
restrictions can eliminate exposure pathways (e.g., for uranium, 
elimination of the resident farmer pathway greatly reduces the dose 
because most of the dose received from uranium is through the 
agricultural pathway); the nature of the institutional controls 
expected to restrict use over extended time periods (e.g., deed 
restrictions, engineered barriers such as fencing, restricted cells, 
etc., and/or government control of the restricted area); and other 
special provisions such as periodic rechecks of the restricted area and 
the continued effectiveness of institutional controls (see Section 
IV.B.3). As discussed previously in Section IV.E.2.2, because community 
involvement already exists either formally or informally at a number of 
complex sites, this provision would not change the situation at these 
sites significantly.
    (2) Following solicitation of advice from affected parties, the 
licensee will include the recommendations from these parties in the LTP 
or decommissioning plan and indicate how those recommendations were 
addressed along with the technical basis for addressing them. The 
technical basis for dealing with the recommendations would presumably 
derive from the presentation made to the affected parties described 
above and is the type of analysis that would be necessary to 
demonstrate to the NRC the acceptability of restricted use provisions.
    Based on the above, it appears reasonable to retain the requirement 
for sites to seek advice from individuals and institutions in the 
community who may be affected by the decommissioning where restricted 
use is proposed. In retaining this requirement, the Commission has 
decided to modify the rule to include general provisions that require 
that such advice be sought on the fundamental performance objective of 
institutional controls, namely that they function to provide reasonable 
assurance that the TEDE does not exceed the dose criteria of the rule, 
that they are enforceable, and that they will not impose undue burdens 
on the local community. This general provision replaces the specific 
reference contained in the proposed rule (Sec. 20.1406(b)) that advice 
must be obtained by convening a SSAB. The rationale for this 
modification derives from the discussion above on site flexibility, 
protecting public health and safety, and ensuring community 
involvement. Specifically, it is anticipated that these requirements 
will contain the beneficial provisions of ensuring timely and 
meaningful opportunity for advice from affected parties to be 
considered and will allow licensees additional flexibility in 
determining the best methods for obtaining that advice based on site-
specific considerations. For example, there may be situations where the 
creation of a SSAB may not be appropriate as in cases where an existing 
organization is already in place to assume this role, or where it is 
clear that the community is willing to rely on local government 
institutions to interact with the licensee. Appropriate mechanisms for 
seeking advice from affected parties could include a public meeting or 
series of meetings, a specific process for obtaining written or 
computerized public comment by internet or web-site means, or by 
convening small groups such as a SSAB. Any of these processes would 
result in an opportunity for a comprehensive, collective discussion of 
the issues by the affected parties. All of these approaches have been 
used in prior decommissionings.
    To ensure that there will continue to be significant opportunity 
for public involvement in the decommissioning process, the modified 
final rule has retained the principal objectives of an SSAB from 
Sec. 20.1407 of the proposed rule, namely that a licensee seeking 
community advice on the proposed restricted use will provide for: (1) 
Participation by representatives of a broad cross section of community 
interests who may be affected by the decommissioning; (2) an 
opportunity for a comprehensive, collective discussion on the issues by 
the participants represented; and (3) a publicly available summary of 
the results of all such discussions, including a description of the 
individual viewpoints of the participants on the issues and the extent 
of agreement and disagreement among the participants on the issues.
    Advice sought from affected parties in the manner noted above would 
be considered in development of the LTP or decommissioning plan, and 
the NRC will review public comments gathered by the licensee prior to 
final NRC action on the licensee's request for license termination.
    As discussed in Section IV.C, the Commission included requirements 
for consideration of alternate criteria for certain difficult sites 
because inclusion of such requirements is preferable to having these 
facilities apply for exemptions. To ensure that there is full public 
participation in any decision regarding such sites, licensees will be 
required to seek advice regarding this approach from affected parties 
in the same manner as described above for restricted use and described 
in detail in

[[Page 39079]]

Section IV.C.3. In addition, use of alternate criteria will only be 
considered by the Commission after review of the NRC staff's 
recommendations that fully address any comments provided by the public 
and EPA regarding the decommissioning or license termination plan.
    E.3.3  Summary of rule revisions on SSABs. Specific text referring 
to SSABs has been replaced with a requirement that licensees seek 
community involvement and advice on any plans for restricted use or 
alternate criteria for decommissioning through a variety of methods. 
This requirement includes provisions for specifically how that advice 
is to be sought and documented in the LTP or decommissioning plan. 
Regulatory guidance is planned which will include criteria for 
establishing and using the processes for seeking such advice, including 
establishing SSABs, and for delineating those situations in which an 
SSAB may not be appropriate. The guidance will discuss that the 
expected starting point in providing an opportunity for public 
involvement is the establishment of an SSAB; however, the provisions of 
the rule provide licensees the flexibility to use other approaches 
where appropriate.
E.4  Specific Questions on Functioning of SSABs
    E.4.1  Comments. A number of comments were received on the 
functioning of SSABs including their responsibilities, membership, 
independence and support, meetings, and results.
    (1) Some commenters recommended that SSABs should be given 
responsibilities beyond those specified in proposed Sec. 20.1407(a). 
Other commenters stated that the rule should restrict SSAB activities 
to a specific mission which is advisory only and nontechnical.
    (2) With regard to membership in SSABs, a number of comments 
recommended specifically how the SSAB and its membership should be 
constituted. Some commenters stated that many of the proposed SSAB 
issues that are listed appear to require specialized expertise that 
members of the general public might not have. Some commenters 
questioned whether NRC and other Government agencies should be 
prohibited from participating in SSABs because of conflict of interest 
questions. Other commenters stated that the NRC should be officially 
represented on the SSAB.
    (3) With regard to independence of and support for SSABs, some 
comments received stated that an SSAB should be selected and operated 
independently of the licensee. One commenter stated that the SSAB would 
be unique as presently proposed because it does not appear to be 
accountable to its employer. Comments were received regarding how SSAB 
costs would be contained and how they would be paid, including costs of 
technical consultants to the SSAB or independent SSAB labs and experts.
    (4) With regard to SSAB meetings and records, comments were 
provided concerning frequency, advertisement and openness of meetings, 
and access to licensee official documents, both those that are part of 
the public docket and those that contain proprietary or other 
confidential information;
    (5) With regard to use of SSAB results, comments were received 
concerning the actions expected to be taken by the licensee and the NRC 
on the advice or comments of the SSAB. These actions include a 
licensee's analysis of SSAB recommendations, the need to obtain the 
SSAB's consensus on aspects of the decommissioning plan, and the effect 
on time restraints of submitting a decommissioning plan reconciling 
SSAB advice.
    E.4.2  Response. Based on the discussion in Section IV.E.3.2 
regarding the need to explore site-specific alternatives as opposed to 
generally mandated SSABs, the rule contains broad provisions for 
obtaining community advice and recommendations through such bodies. The 
purpose of the requirements on public involvement is to obtain 
meaningful public input into preparation of the plan for 
decommissioning the site when restrictions on future use or proposals 
for alternate criteria are planned. To allow for flexibility, Section 
IV.E.3.2 indicates that the final rule has been modified to establish 
general requirements for obtaining such advice while retaining the 
principal objectives of an SSAB from Sec. 20.1407(b)-(f) of the 
proposed rule. The details, such as specific issues of size, 
membership, responsibilities, administration, meetings, and records 
requested in these comments are more appropriately contained in 
regulatory guidance. With regard to issues of funding public 
involvement, reasonable efforts towards obtaining advice from affected 
parties should be undertaken by the licensee, such as sponsoring and 
holding community meetings and distributing information at those 
meetings regarding the rationale for and nature of the restricted use. 
Examples of these meetings are those held for reactor facilities and 
those held for several SDMP sites, for example the Cushing site.
    E.4.3  Summary of rule revisions on functioning of SSABs. As noted 
in Sections E.3.2 and E.4.2 above, the principal objectives of SSABs 
have been retained in Sec. 20.1403(d) which replaces the detailed 
provisions in proposed Sec. 20.1407 (b) through (f) of the proposed 
rule. The guidance that the NRC develops to implement the final rule 
will include additional guidance on seeking advice from affected 
parties, including establishing and using SSABs.

F. Other Procedural and Technical Issues

F.1  State and NRC Compatibility
    F.1.1  Comments. Some commenters stated that States should have the 
authority to demand stricter radiation protection standards than the 
Federal Government. Some commenters recommended that States not be 
allowed to set less strict conditions. Other commenters stated that 
radiological criteria should be an area of strict compatibility and 
States should not be permitted to impose more stringent standards. 
Specific comments raised included questions as to which standard would 
apply if there was a conflict, whether a State would need NRC approval 
to require more strict standards, application of ALARA provisions, who 
should pay for costs if more strict State standards are applied, 
exemptions, and grandfathering provisions similar to those in Section 
IV.F.2.
    F.1.2  Response. The proposed rule did not propose a compatibility 
determination because the Commission was in the process of developing a 
compatibility policy. Instead, comments were requested on compatibility 
and the comments received were divided on this issue.
    The current compatibility policy categorizes rules into four 
``divisions.'' Division 1 rules are those that Agreement States must 
adopt, essentially verbatim, into their regulations. These rules 
include provisions that form the basic language of radiation protection 
and include technical definitions and basic radiation protection 
standards such as public dose limits, occupational exposure limits and 
effluent release limits. Division 2 rules address basic principles of 
radiation safety and regulatory functions. Although Agreement States 
must address these principles in their regulations, the use of language 
identical to that in NRC rules is not necessary if the underlying 
principles are the same. Also, the Agreement States

[[Page 39080]]

may adopt requirements more stringent than NRC rules.
    Because the dose criterion in the rule is not a ``standard'' in the 
sense of the public dose limits of 10 CFR part 20 but is a constraint 
within the public dose limit that provides a sufficient and ample 
margin of safety below the limit, it is reasonable that the rule would 
be a Division 2 level of compatibility under the current policy. This 
means the Agreement States would be required to adopt the regulation 
but would have significant flexibility in language, and would be 
allowed to adopt more stringent requirements.
    The Commission has not yet approved a new final policy on 
compatibility that revises the current policy, although it is currently 
considering the implementing procedures for this policy (SECY-96-213 
dated October 3, 1996). Until the new policy becomes effective, NRC 
will continue to apply the current Agreement State compatibility 
policy.
F.2.  Grandfathering Sites With Previously Approved Plans (Proposed 
Rule 20.1401(b))
    F.2.1  Proposed rule contents. Section 20.1401(b) of the proposed 
rule indicated that the criteria do not apply to sites already covered 
by a decommissioning plan approved by the Commission before the 
effective date of the final rule and in accordance with the criteria 
identified in the SDMP Action Plan of April 16, 1992 (57 FR 13389).
    F.2.2  Comments. Some commenters supported the provision of 
grandfathering sites covered by a decommissioning plan approved by the 
Commission (and suggested extending it to plans under review) because 
it is consistent with previous NRC statements in the SDMP Action Plan. 
Some commenters suggested that criteria other than those in the SDMP 
Action Plan should also be used for grandfathering. Other commenters 
opposed grandfathering because criteria used in those cases would be 
different than those in the rule.
    Commenters recommended that the rule address how the criteria would 
apply to portions of sites. Some commenters recommended that the 
grandfathering provision cover an NRC-approved decommissioning plan 
even if it is for a portion of a site.
    F.2.3  Response. The Commission continues to believe that sites 
being decommissioned under previously approved decommissioning plans 
should be grandfathered from the provisions of the final rule. 
Similarly provisions should apply to licensees whose decommissioning 
plans are in the final stages of preparation or of NRC review. From a 
health and safety perspective, the NRC believes the criteria identified 
in the SDMP Action Plan are reasonably consistent with the final rule's 
dose criteria. The contamination levels defined in the SDMP Action Plan 
are within the range of measurable values that could be derived through 
the site-specific screening and modeling approaches defined in guidance 
supporting this final rule. The Commission believes the grandfathering 
approach will facilitate the timeliness of decommissioning and ensure 
licensees that resources spent to develop and implement a 
decommissioning plan are justified.
    With regard to criteria other than the SDMP Action Plan, the 
grandfathering provision in the proposed rule was conditioned on the 
license being terminated in accordance with the criteria identified in 
the SDMP Action Plan, because those criteria are consistent with the 
final rule. However, the grandfathering provision does not extend to 
any former decommissioning actions in general because that would not 
provide assurance that such actions were adequate to protect the 
public. As part of its overall upgrading of its oversight of 
decommissioning actions, NRC has conducted a systematic review of a 
large number of license terminations to identify sites with significant 
contamination and has identified a number of sites warranting 
additional NRC attention. Broadening the grandfathering exclusion in 
the rule would not be consistent with the objectives of this 
comprehensive agency review and is not supported by existing 
information and experience.
    The NRC staff anticipates that grandfathering would occur as 
follows:
    (1) Licensees would have up to 12 months after the effective date 
of the rule to submit sufficient LTPs or decommissioning plans (if 
required) in accordance with the SDMP Action Plan criteria;
    (2) The NRC staff would have up to 24 months after the effective 
date of the rule to approve those plans;
    (3) Any plan submitted after 12 months or approved after 24 months 
of the effective date would have to be consistent with the new rule; 
and
    (4) There would be provisions for day-for-day extension if an EIS 
is required in the submittal; i.e., if development of an EIS is 
required before NRC can reach a decision regarding the decommissioning, 
then the 12-month window for submitting an LTP or decommissioning plan 
would be extended by the same number of days required for the 
Commission to issue a record of decision.
    In submitting the decommissioning plan for the licensed activities 
that are to cease on portions of sites, the licensee must identify the 
areas associated with the ceased operations. These areas must be 
remediated to achieve acceptable radiological criteria for release, 
either those in the final rule or previous acceptance criteria that 
would achieve comparable protection as the criteria in the final rule. 
The area for continuing licensed operations could continue to contain 
radioactivity above the radiological criteria. When the continuing 
operations cease, the radiological criteria of the final rule would 
then be required to be met for the portion of the site for which 
operations had most recently ceased. The decision on grandfathering 
previously released portions of the site depends on whether the 
criteria previously used are still acceptable (e.g., part of the SDMP 
Action Plan) and whether it can be demonstrated that these areas have 
not been affected by the continued operations. NRC intends to develop 
comprehensive guidance on how licensees should address previously 
released portions of licensed sites in demonstrating compliance with 
the dose criteria.
    Not all licensees are required to submit decommissioning plans, and 
instead, may submit appropriate documentation including a report of the 
results of the radiation survey of the premises (see for example, 10 
CFR 30.36). Because the rationale discussed above applies in general to 
all facilities, these grandfathering provisions apply to all licensees, 
independent of the type of documentation for license termination that 
has received NRC approval.
    An aspect of grandfathering is those sites that were not previously 
licensed but are discovered to have radioactivity levels that are 
licensable or are in excess of the levels presented here as appropriate 
for unrestricted site use. These cases have arisen as part of the SDMP 
and are described in NUREG-1444. It is intended that the criteria of 
this rule will also apply, as appropriate, to residual radioactivity at 
sites that were not previously licensed.
    F.2.4  Summary of rule revisions on grandfathering. The final rule 
has retained the grandfathering provision. However, it has been 
modified to include facilities whose plans are in the final stages of 
decommissioning plan preparation and decision.

[[Page 39081]]

F.3  Finality of Decommissioning and Future Site Reopening (Proposed 
Rule Sec. 20.1401(c))
    F.3.1  Proposed rule contents. Proposed Sec. 20.1401(c) stated that 
after a site has been decommissioned and the license terminated in 
accord with the criteria of the proposed rule, the Commission will 
require additional cleanup only if, based on new information, it 
determined that residual radioactivity remaining at the site could 
result in significant public risk.
    F.3.2  Comments. Some commenters stated that decommissioning a 
nuclear facility and releasing a site should be accomplished as a final 
regulatory action unless new information indicates there is a 
significant health and safety risk and net benefit to future cleanup. 
These commenters cited financial reasonableness, the low risk 
associated with the criteria, and the incentive to complete 
decommissioning. Other commenters stated that they did not agree that 
these actions should be final and that the site should be cleaned up to 
account for mistakes, discovery of contamination, or new health 
findings. It was noted that the terms ``significant public risk'' and 
``new information'' used in proposed Sec. 20.1401(c) needed to be 
explained and appropriately defined.
    F.3.3  Response. The wording of final Sec. 20.1401(c) states that 
the Commission will require additional cleanup only if, based on new 
information, it determines that residual radioactivity remaining at the 
site could result in significant public risk. The low level of 
estimated risk associated with the final rule's dose criteria, coupled 
with the conservatisms in the methodologies that convert these dose 
criteria to levels of measurable contamination in the environment, 
should minimize the likelihood that new information, including errors 
during the decommissioning processes, would significantly impact the 
protection of public health and safety or the environment.
    The Commission believes the fundamental reason for requiring 
additional cleanup would hinge on the public risk associated with the 
remaining radioactivity at the site. The existence of additional 
contamination or noncompliance with the decommissioning plan at a level 
in excess of the dose criteria but less than the public dose limits in 
10 CFR Part 20 would not, by themselves, be sufficient to invalidate 
the finality provision. Therefore, the wording of Sec. 20.1401(c) 
captures the fundamental issue.
    The Commission believes the terms ``significant public risk'' and 
``new information,'' as used in Sec. 20.1401(c), do not require 
specific definition or clarification. The reason lies in the fact that 
under the provisions of the rule, a licensee is allowed to demonstrate 
compliance with the dose criteria through use of several screening and 
modeling approaches. Each approach has a degree of conservatism 
associated with the relationship of the measurable level of a 
contaminant in the environment to the final rule's dose criterion. 
Because of the surveys required of the licensee and confirmatory 
surveys routinely performed by NRC, the chances of previously 
unidentified contamination being discovered would be expected to be 
small. Also, contamination that would pose a significant public risk 
above the levels implied by the dose criterion is expected to be 
smaller still.
    Another possibility is that ongoing studies will lead to the 
conclusion that an increased risk associated with a given exposure to 
radiation exists. Although such an increase can occur as indicated by 
the continuing studies of Japanese atomic bomb survivors, the 
Commission believes that demographic studies of populations exposed to 
differing background exposure levels provide a defensible bound on the 
magnitude of any increase in the dose to risk conversion factor. Taken 
alone, any such increase would not be expected to affect finality 
decisions.
    Thus, because any challenge to finality is likely to involve some 
unexpected combination of factors, the Commission believes that 
attempting to specifically define what constitutes ``new information'' 
or ``significant public risk'' is ill-advised because the determination 
would be made on a case-by-case basis.
    As noted in Sections IV.A and IV.D, there are issues that have been 
raised by EPA regarding the acceptability of the unrestricted dose 
criterion as well as the inclusion of a separate groundwater standard. 
These issues were raised during the public comment period as well as 
during a public meeting held April 21, 1997 to explore differences 
between NRC and EPA on certain issues in the final rule. As noted in 
those sections, EPA has indicated that it preferred a 0.15 mSv/y (15 
mrem/y) TEDE dose criterion for unrestricted use and inclusion of a 
separate groundwater standard as were proposed in NRC's proposed rule. 
At the April 21, 1997 meeting, EPA also indicated that it had concerns 
with inclusion of alternate criteria and with certain public 
participation aspects of the rule. For the reasons described in some 
detail in Sections IV.A, IV.C, IV.D, and IV.E, the Commission has 
included in the final rule a 0.25 mSv/y (25 mrem/y) dose criterion 
which would apply to all exposure pathways including groundwater, an 
alternate criteria provision for certain difficult cases to reduce the 
need for requests for exemptions, and provisions for substantive 
participation by the public, including EPA.
    As described in some detail in Sections IV.A-IV.E, the Commission 
believes that the overall approach to license termination in this final 
rule (that includes unrestricted and restricted use dose criteria, 
alternate criteria, and ALARA considerations) protects public health 
and safety, and that the approach to drinking water protection in the 
final rule provides an appropriate and more consistent level of 
protection of public health and safety than use of MCLs. In addition, 
as is further described in those sections, it is anticipated that in 
the large majority of situations the combination of ALARA 
considerations, the nature of the concrete and soil removal processes, 
the use of restrictions on site use where appropriate, and the effects 
of radionuclide decay and transport mechanisms in the environment will 
result in the large majority of NRC licensees meeting the criteria 
preferred by EPA. Those sections also clearly indicate that alternate 
criteria will be confined to rare situations and require specific 
Commission approval of the license termination in those cases. In 
addition, the Commission believes that the provisions of the final rule 
as described in Section IV.E provide for a substantive level of public 
involvement in the decommissioning process.
    Thus the Commission believes that the criteria of this final rule 
provides protection comparable to that preferred by EPA and that 
therefore it would be reasonable for EPA to find NRC's rule 
sufficiently protective.
    Licensees should be aware that if they terminate a license using 
the criteria of this rule, there is some potential that the license 
termination may be revisited as part of an EPA proceeding, although 
such an action would not seem reasonable for the same reasons that site 
cleanups noted above would not be revisited, i.e., it is not believed 
that significant public risk would be determined to exist.
    F.3.4  Summary of rule revisions on finality. Based on this 
discussion, the rule has not been changed with regard to the finality 
issue.

[[Page 39082]]

F.4  Minimization of Contamination (Proposed Rule Secs. 20.1401(d) and 
20.1408)
    F.4.1  Proposed rule contents. Proposed Sec. 20.1401(d) indicated 
that applicants for licenses, other than renewals, would be required to 
describe in the application process how facility design and procedures 
for operation will minimize contamination of the facility and the 
environment, facilitate eventual decommissioning, and minimize the 
generation of radioactive waste.
    F.4.2  Comments. Some commenters recommended that the requirements 
for describing facility design and procedures for waste minimization 
should apply to all license applicants and not only to applicants for 
new licenses. One commenter recommended that the rule remain as 
proposed and not apply to renewal licenses.
    F.4.3  Response. The intent of this provision is to emphasize to a 
license applicant the importance, in an early stage of planning, for 
facilities to be designed and operated in a way that would minimize the 
amount of radioactive contamination generated at the site during its 
operating lifetime and would minimize the generation of radioactive 
waste during decontamination. Applicants and existing licensees, 
including those making license renewals, are already required by 10 CFR 
part 20 to have radiation protection programs aimed towards reducing 
exposure and minimizing waste. In particular, Sec. 20.1101(a) requires 
development and implementation of a radiation protection plan 
commensurate with the scope and extent of licensed activities and 
sufficient to ensure compliance with the provisions of 10 CFR part 20. 
Section 20.1101(b) requires licensees to use, to the extent 
practicable, procedures and engineered controls to achieve public doses 
that are ALARA. In addition, lessons learned and documented in reports 
such as NUREG-1444 have focused attention on the need to minimize and 
control waste generation during operations as part of development of 
the required radiation protection plans. Furthermore, the financial 
assurance requirements issued in the January 27, 1988 (53 FR 24018), 
rule on planning for decommissioning require licensees to provide 
adequate funding for decommissioning. These funding requirements create 
great incentive to minimize contamination and the amount of funds set 
aside and expended on cleanup.
    Thus, current requirements require both applicants and existing 
licensees, including renewals, to minimize contamination. Specific 
minimization requirements contained in the proposed rule are directed 
towards those making application for a new license because it is more 
likely that consideration of design and operational aspects that would 
reduce dose and minimize waste can be cost-effective at that time 
compared to such considerations during the license renewal stage where 
the existing design and previous operations may be major constraints. 
The Commission continues to believe that the emphasis should continue 
to be directed at such new designs and, therefore, the requirement for 
minimization has been retained as proposed.
    F.4.4  Summary of rule revisions on minimization of contamination. 
The requirement in the proposed rule for imposition of the requirement 
on applicants for new licenses has been retained in the final rule in 
Sec. 20.1406 but has not been further extended.
F.5  Provisions for Readily Removable Residual Radioactivity
    F.5.1  Proposed rule contents. Proposed Sec. 20.1403(c) indicated 
that licensees are to take reasonable steps to remove all readily 
removable residual radioactivity from the site.
    F.5.2  Comments. Some commenters recommended either deletion, 
modification, or clarification of the provision for readily removable 
residual radioactivity.
    F.5.3  Response. The provision for removal of ``readily removable'' 
residual radioactivity was intended to provide guidance on what 
materials should be removed even if the removal would have little 
effect on dose. The intent of this provision is to define the basic 
remedies that are a matter of ``good practice'' such as common 
housekeeping techniques (e.g., washing with moderate amounts of 
detergent and water) that do not generate large volumes of radioactive 
waste requiring subsequent disposal. As noted in the preamble to the 
proposed rule, removal of this material is considered a necessary and 
reasonable step toward ensuring that doses to the public from residual 
radioactivity are ALARA. These considerations should be considered as 
part of an ALARA evaluation for planning decommissioning activities in 
a licensee's radiation protection program as required by 
Sec. 20.1101(b).
    F.5.4  Summary of rule revisions for readily removable 
radioactivity. Because there is no purpose in duplicating an already 
existing requirement for ALARA, the specific provision regarding 
``readily removable'' has been deleted from the final rule.
F.6  Separate Standard for Radon
    F.6.1  Proposed rule contents. Proposed Sec. 20.1404(a) did not 
contain a separate standard for radon.
    F.6.2  Comments. Some commenters indicated that the rule should 
specifically include reference to radon whereas other commenters stated 
that the rule should not include standards for radon or expressed 
concerns about the complications introduced by these considerations and 
the fact that background radon levels are so high.
    F.6.3  Response. Radon is a radioactive gas formed by the 
radioactive decay of radium. Radium is a member of the naturally-
occurring uranium-238 radioactive decay chain. Radionuclides from this 
decay chain are found in natural background in various concentrations 
in most soils and rocks. Estimation of radon dose is a consideration 
for this rulemaking only at those very few facilities which have been 
contaminated with radium as a result of licensed activities.
    Following the approach taken in the proposed rule, this final rule 
includes radiological criteria for residual radioactivity that is 
distinguishable from background. Because of natural transport of radon 
gas in outdoor areas due to diffusion and air currents, doses from 
exposure to radon in outside areas due to radium in the soil are 
negligible. Within buildings, wide variation in local concentrations of 
naturally occurring indoor radon, well in excess of the 0.25 mSv/y (25 
mrem/y) dose criterion discussed in Section IV.A, have been observed in 
all regions of the United States. The dominant factor in determining 
indoor radon levels are the design features of any structures at a site 
where radium is present in the soil. Certain structural features, 
including energy saving measures that reduce air exchange with the 
outside, can have the effect of trapping radon gas within a building, 
thus allowing buildup of radon to elevated levels. In addition, indoor 
radon levels can vary significantly over time due to seasonal changes 
and the rate of air flow in rooms.
    Another variable in radon levels is introduced by the use of radon 
mitigation techniques in buildings which can have the effect of 
reducing radon levels by deliberate venting of the gas to outside 
areas. In many parts of the country, local building codes have been 
enacted for the purpose of reducing radon levels in homes, in 
particular in areas where there are high levels of naturally occurring 
radium and radon.

[[Page 39083]]

    The variations in radon levels described above make it very 
difficult to distinguish between naturally occurring radon and radon 
resulting from licensed material. In addition, it is impractical to 
predict prospective doses from exposure to indoor radon due to problems 
in predicting the design features of future building construction. 
Because of these variations and the limitation of measurement 
techniques, the Commission believes that it is not practical for 
licensees to distinguish between radon from licensed activities at a 
dose comparable to a 0.25 mSv/y (25 mrem/y) dose criterion and radon 
which occurs naturally. Therefore, in implementing the final rule, 
licensees will not be expected to demonstrate that radon from licensed 
activities is indistinguishable from background on a site-specific 
basis. Instead this may be considered to have been demonstrated on a 
generic basis when radium, the principal precursor to radon, meets the 
requirements for unrestricted release, without including doses from the 
radon pathway.
    In some instances it may not be reasonable to achieve levels of 
residual concentrations of radon precursors within the limit for 
unrestricted use. As discussed in Section IV.B for cases such as these, 
restricting site use by use of institutional controls could be 
considered by a licensee as a means to limit the doses from precursors 
by limiting access to the site. Under the restricted use provisions of 
the rule, these doses are required to be further reduced based on ALARA 
principles. In developing guidance on the application of ALARA in such 
cases, the Commission will also consider the practicality of requiring 
as part of controls the use of radon mitigation techniques in existing 
or future structures.
    F.6.4  Summary of rule revisions. No change to the final rule has 
been made.
F.7  Calculation of TEDE Over 1000 Years to Demonstrate Compliance With 
Dose Standard (Proposed Rule Sec. 20.1403(a))
    F.7.1  Proposed rule contents. Proposed Sec. 20.1403(a) stated that 
when calculating the TEDE, the licensee shall base estimates on the 
TEDE expected within the first 1000 years after decommissioning.
    F.7.2  Comments. Some commenters objected to the proposed 1000-year 
time frame for calculating dose and wanted it lengthened to better 
predict health effects over the hazardous life of each isotope. Other 
commenters wanted the proposed 1000-year time frame shortened because 
it is inconsistent with 10 CFR part 40, Appendix A, and 10 CFR part 61 
that use times of 200-500 years.
    F.7.3  Response. As previously discussed in the preamble to the 
proposed rule, the Commission believes use of 1000 years in its 
calculation of maximum dose is reasonable based on the nature of the 
levels of radioactivity at decommissioned sites and the potential for 
changes in the physical characteristics at the site over long periods 
of time. Unlike analyses of situations where large quantities of long-
lived radioactive material may be involved (e.g., a high-level waste 
repository) and where distant future calculations may provide some 
insight into consequences, in the analysis for decommissioning, where 
the consequences of exposure to residual radioactivity at levels near 
background are small and peak doses for radionuclides of interest in 
decommissioning occur within 1000 years, long term modeling thousands 
of years into the future of doses that are near background may be 
virtually meaningless. In 10 CFR part 40, Appendix A makes reference to 
both a 200-year and 1000-year time frame. 10 CFR part 61 references the 
design of a physical barrier rather than a calculation of exposure.
    F.7.4  Summary of rule revisions. This provision has been retained 
in Sec. 20.1401(d) of the final rule.

G. Other Comments

G.1  Definitions (Proposed Rule Sec. 20.1003)
    G.1.1  Comments. There were comments on several definitions in 
Sec. 20.1003 of the proposed rule including the following:
    (1) With regard to the definition of background radiation, several 
commenters opposed defining ``background radiation'' in terms of 
currently existing levels and proposed defining it at the level 
existing when human beings and other organisms evolved; i.e., man-made 
sources of radiation should not be considered to be a part of 
``background radiation.'' One commenter suggested that the term 
``naturally occurring radioactive material,'' that is used in the 
definition of ``background radiation,'' should also be defined. This 
commenter also suggested that the word ``like,'' that precedes 
``Chernobyl,'' should be replaced with the words ``such as'' to clearly 
indicate that an example is being provided.
    (2) With regard to the definition of decommissioning, several 
commenters recommended that license termination not be specified in the 
definition of decommissioning because it is a separate issue from 
decommissioning. Some commenters stated that licenses should be 
terminated only when sites are given unrestricted release and that 
restricted use should not be permitted or included in the definition.
    (3) Other comments were also received requesting clarification of 
other definitions contained in the rule, including inclusion of radon 
in the definition of background and the definitions of critical group, 
restricted use, release of portions of sites, indistinguishable from 
background, readily removable radioactivity, and SSABs.
    G.1.2  Response. The only modification that the proposed rule made 
to the existing definition of background in 10 CFR part 20 was the 
inclusion of the phrase ``or from past nuclear accidents like Chernobyl 
that contribute to background radiation and are not under the control 
of the licensee.'' The reason for this modification was to further 
clarify the existing requirement regarding sources of radiation and 
radionuclides that can be excluded from licensee evaluation. After 
review of the comments, the Commission continues to believe that the 
inclusion in background of global fallout from weapons testing and 
accidents such as Chernobyl is appropriate. No compelling reason was 
presented that would indicate that remediation should include material 
over that the licensee has no control and that is present at comparable 
levels in the environment both on and offsite.
    The existing definition of decommissioning in 10 CFR parts 30, 40, 
50, 70, and 72 was incorporated into the regulations on June 27, 1988 
(53 FR 24018). The Commission continues to believe that 
``decommissioning'' is a term for a process which ultimately leads to 
termination of an NRC license for unrestricted use. The only change to 
the existing definition made by the proposed rule would be adding 
``release of property under restricted conditions'' to the process of 
termination of the license. In response to commenters who disagreed 
with permitting restricted use, Section IV.B contains a detailed review 
of issues on acceptability of restricted use. Based on that review, the 
final rule continues to permit restricted use. Therefore, the 
definition in the proposed rule is not changed.
    The remaining comments on definitions reflect specific technical 
concerns regarding use of the terms rather than the definition itself. 
These concerns are discussed in detail in the responses to the 
technical issues

[[Page 39084]]

addressed in Sections IV.A through IV.F.
    G.1.3  Summary of rule revisions. The only change to Sec. 20.1003 
is a change in the wording of the definition of background to replace 
the word ``like'' with the words ``such as'' before ``Chernobyl'' as 
suggested by a commenter.
G.2  Need for Regulatory Guidance
    G.2.1  Comments. Commenters requested that additional regulatory 
guidance be provided on a number of subjects including decommissioning 
planning for sites and portions of sites, methods for demonstrating 
compliance with the dose criteria and with ALARA, means for complying 
with restricted use provisions (including SSAB operations), and 
contents of a public participation plan. Specific comments were 
received regarding need for guidance on modeling (including methods for 
translating contamination levels to dose) and surveys (including 
measurement of contamination at low levels), and clarification of 
several terms.
    G.2.2  Response. Regulatory guidance is being developed in the 
areas requested. Regulatory guidance being prepared on dose 
calculations and surveys for radiological criteria for decommissioning 
describes acceptable survey methods that licensees can use. This 
guidance describes methods that licensees can use to convert site 
contamination to dose for the purpose of compliance with the rule 
criteria and for estimating ALARA. The guidance is the further 
development of NUREG-1500 issued with the proposed rule and presents an 
approach for assessing dose coupled with the ability to incorporate 
site-specific parameters. Further guidance on public participation and 
restricted use is also being considered to support this rule.
G.3  Need for Flexibility
    G.3.1  Comments. Commenters indicated that it is important to 
provide flexibility in compliance with rule requirements by use of 
site-specific conditions, ALARA, and exemptions in implementation of 
the criteria.
    G.3.2  Response. Use of site-specific conditions, especially in 
calculation of acceptable contamination levels based on site-specific 
parameters, contamination levels and volumes, and usage of the site, is 
permitted in complying with the regulations. This will be discussed 
more fully in the regulatory guidance. Furthermore, the final rule 
provides for establishing alternate license termination criteria based 
on site-specific considerations.
G.4  Consistency With NRC's Timeliness Rule
    G.4.1  Comments. Some commenters indicated that the rule is 
inconsistent with NRC's timeliness rule (59 FR 36026; July 15, 1994).
    G.4.2  Response. The timeliness rule requires licensees to notify 
the Commission promptly when a decision is made to permanently cease 
principal activities or whenever principal activities have ceased for 
24 months. Further, it requires licensees to complete decommissioning 
within 24 months. The Commission may approve an alternate schedule to 
complete decommissioning provided sufficient justification is provided 
by the licensee.
    Although this rule includes options for license termination or 
transfer to another entity, licensees will still be expected to 
initiate and complete decommissioning in a timely manner. If a licensee 
intends to use the restricted release option, the licensee is expected 
to promptly assess its site characteristics, submit a decommissioning 
plan if required, provide financial assurance, and include appropriate 
public participation in its decisionmaking. Because the requirements 
allow licensees 12 months to submit this information to the Commission, 
sufficient time should be available. The Commission may grant 
additional time if the licensee demonstrates that the relief is not 
detrimental to the public health and safety and is in the public 
interest. If a licensee is unable to demonstrate that release of a site 
would not prevent a member of the public from receiving a dose in 
excess of the public dose limit, the site would not be released but 
would be transferred to a Government entity or maintained under 
license. These cases are expected to be rare and will be handled on a 
case-by-case basis.
G.5  Comments From Power Reactor Decommissioning Rulemaking
    G.5.1  Comments. Comments were received on the power reactor 
decommissioning rule that was recently finalized and published on July 
29, 1996 (61 FR 39278), requesting that the Commission consider the 
elimination of the environmental review requirement at the license 
termination stage (Sec. 50.82(a)(9)(ii)(G) and Sec. 51.53(b)) for 
decommissioning to unrestricted release conditions. In response, the 
Commission indicated that it would consider these comments in the 
rulemaking on radiological criteria for decommissioning.
    G.5.2   Response. The Commission has considered the elimination of 
the supplemental environmental review requirement for a licensee that 
intends to decommission to unrestricted release conditions as required 
in this final rule and has decided to continue to retain this 
requirement. The Commission considers this necessary for any particular 
site to determine if the generic analysis encompasses the range of 
environmental impacts at that particular site. The rationale for 
retaining this requirement was explained in the preamble to the 
proposed rule and has not changed.
G.6  Mixed Waste, Hazardous Waste, and Naturally Occurring and 
Accelerator-Produced Radioactive Material
    G.6.1  Comments. Some commenters stated that the rule should 
address the cleanup of sites with mixed wastes. Other commenters 
recommended that NRC should not regulate any nonradioactive hazardous 
material beyond its authority. There was disagreement over whether 
NRC's approval of a licensee's decommissioning activities should be 
dependent on the licensee fulfilling other agencies' obligations, 
especially where accelerator produced materials may exist. Some 
commenters stated that the rule criteria are incompatible with 
naturally occurring and accelerator-produced radioactive material 
(NARM).
    G.6.2  Response. The final rule on radiological criteria for 
decommissioning applies to residual radioactivity from all licensed and 
unlicensed sources used by the licensee but excludes background 
radiation. As such, the NRC or Agreement State, whether acting as the 
lead or cooperating agency in working with the licensee to ensure 
appropriate remediation of a contaminated site, would not release a 
site from its license unless the rule's radiological criteria were met.
    NRC responsibility for license termination at a site with hazardous 
or mixed waste onsite is principally to determine that the radiological 
component of the mixed waste (e.g., contaminated soil) complies with 
the rule's radiological criteria. Other regulatory agencies are 
responsible for control of the hazardous constituents and must be 
notified and accept responsibility for appropriate management of the 
released site. The same approach would be followed in potentially 
releasing a site with groundwater contamination exceeding applicable 
maximum contaminant levels of nonradiological substances. Note that 
under the Uranium and Mill Tailings Recovery and Control Act

[[Page 39085]]

(UMTRCA), NRC is responsible for the regulation of certain 
nonradioactive hazardous materials.
    With regard to NARM, NRC's legislative and regulatory authority 
extends to those materials and facilities under the Atomic Energy Act 
of 1954, as amended, and not to accelerator produced materials or 
naturally occurring radioactive material, except as it is defined as 
source material in 10 CFR part 40.4. Section IV.A, notes that, although 
some commenters questioned the relationship of this rule to NARM, the 
criteria of this rule apply to residual radioactivity from activities 
under a licensee's control and not to background radiation (that 
includes radiation from naturally occurring radioactive material 
(NORM)). There are a wide variety of sites containing NORM subject to 
EPA jurisdiction and not licensed by the NRC. The extent to which the 
criteria in this rule would apply to these sites would be based on a 
separate evaluation. However, the considerations and analyses done for 
this rulemaking in the Final GEIS and regulatory analysis regarding 
large fuel cycle and non-fuel-cycle facilities containing large 
quantities of naturally occurring nuclides such as uranium and thorium 
are appropriate for certain NORM sites, and the broad provisions of the 
rule (such as control of sites with restrictions imposed, use of 
alternate cap values, use of alternate criteria, and public 
participation aspects) may be useful in considerations regarding NORM 
sites.
G.7  Recycle
    G.7.1  Comments. Commenters recommended that recycling of equipment 
or materials be addressed in more depth in the final rule. Several 
commenters stated that recycling of contaminated materials that results 
in increased exposures to members of the public is unacceptable. Other 
commenters favored establishment of criteria for recycled materials.
    G.7.2  Response. The proposed rule did not specifically address the 
recycle of material or equipment decontaminated as a result of the 
decommissioning process. The Commission has a separate consideration 
underway of the issues related to cases when the licensee proposes to 
intentionally release material containing residual radioactivity that 
could become available for reuse or recycle.
    Because current NRC regulations do not contain explicit 
radiological criteria for release of equipment and materials, release 
from licensed facilities is currently determined by NRC on a case-by-
case basis using existing guidance and practices. Current practices 
include radiation surveys to document the absence of licensed 
radioactive material, general guidance for reactors contained in 
Regulatory Guide 1.86 or similar guidance issued for materials 
facilities, and site-specific technical specifications and license 
conditions. Although these criteria were not originally derived for the 
case of recycle, they have been applied for many years in a wide 
variety of contexts.
    Continuation of the case-by-case procedure in the future may not be 
practical because of increased quantities of material expected from 
larger facility decommissionings. Also, interest in recycling slightly 
contaminated material is growing both in the United States and in other 
countries as a means of conserving resources by limiting the amount of 
new raw materials that are necessary to produce new products and 
equipment and by reducing the costs of disposing of large volumes of 
slightly contaminated material that may pose very small risks to the 
general public. Codifying criteria would allow NRC to more effectively 
deal with these issues. Regulatory action separate from this 
decommissioning action by NRC, that would provide clear, consistent 
criteria in this area, is being considered. Specifically, the NRC is 
cooperating with the EPA in developing the technical basis for a 
recycle rulemaking. At present, the EPA is developing its plans for 
such a rulemaking. The NRC will determine what course of action it will 
take regarding rulemaking related to recycle after consideration of EPA 
plans. Full opportunity for early public involvement and comment 
regarding that regulatory action is anticipated. Because of this 
background, no revision to this decommissioning rule to consider 
recycling is being made.
G.8  The Rulemaking Process
    G.8.1  Comments. Several commenters expressed satisfaction with the 
enhanced rulemaking process undertaken by the NRC for the 
decommissioning rule. Of those commenters who opposed the proposed 
decommissioning standards for not being sufficiently restrictive, some 
were critical of the rulemaking process and suggested that the NRC had 
ignored their earlier participation. Other commenters expressed 
dissatisfaction with the proposed standards because they are overly 
restrictive. The DOE stated that it supported the NRC effort to issue 
the rule and the joint efforts of the EPA and the NRC to coordinate 
their respective rulemaking proceedings.
    G.8.2  Response. The NRC has conducted what it considers to be an 
extensive effort at enhancing participation in the early stages of this 
rulemaking process through a series of workshops and environmental 
impact statement scoping meetings for affected interests that solicited 
public comment with regard to radiological criteria for 
decommissioning. The extent of these meetings was discussed in the 
preamble to the proposed rule.
    The workshops and the scoping meetings were not designed to seek 
``consensus'' in the sense that there is agreement on how each issue 
should be resolved, but rather to ensure that, with informed 
discussion, relevant issues have been identified and information 
exchanged on these issues.
    Subsequent to the workshops and scoping meetings, the Commission 
developed the policies and requirements that were deemed appropriate 
for a rule on radiological criteria for decommissioning. Information 
and concepts developed in the workshops were factored into this 
process. For example, a number of themes from the workshops, such as 
consideration of restricted use options, increased public participation 
in the site decommissioning process, and a desire to return sites to 
levels indistinguishable from background, were considered during the 
rulemaking. The Commission also considered the approaches of scientific 
bodies such as the ICRP and NCRP, precedents of its other rulemakings 
with regard to radiation protection such as 10 CFR part 20, input from 
EPA regarding appropriate risk levels, technical input from NRC 
contractors regarding capability to measure at low radiation levels, 
and the costs and impacts of achieving alternate levels.
    Preliminary conclusions regarding this effort were contained in the 
NRC staff's draft rule (59 FR 4868, February 2, 1994) that was sent to 
Agreement States, workshop participants, and other interested parties. 
The intent of this informal comment period in advance of a proposed 
rule was to provide an opportunity for interested parties to comment on 
the adequacy of the draft criteria.
    Resolution of comments from the workshops and from circulation of 
the NRC staff draft was discussed in the preamble of the proposed rule 
published on August 22, 1994 (59 FR 43200). The preamble indicates the 
evolution of the NRC's approach to this rulemaking as a result of the 
workshops and the other activities noted above.
    Clearly, there are a number of specific areas which remain 
difficult to resolve or on which to reach a ``consensus.'' These areas 
include the precise level of

[[Page 39086]]

permissible radiological criteria for decommissioning, restricted use 
as a means for terminating a license, and the extent of public 
participation. It is the NRC's consideration that the rulemaking 
process has allowed an airing of differing opinions with regard to 
these as well as other issues.

V. Agreement State Compatibility

    The Commission has determined that this rule will be a Division 2 
matter of compatibility. For the discussion on the basis for this 
determination, see Section IV.F.1.

VI. Relationship Between the Generic Environmental Impact Statement and 
Site-Specific Decommissioning Actions

    The Generic Environmental Impact Statement (GEIS) prepared by the 
Commission on this rulemaking evaluates the environmental impacts 
associated with the remediation of several types of NRC-licensed 
facilities to a range of residual radioactivity levels. The Commission 
believes that the generic analysis will encompass the impacts that will 
occur in most Commission decisions to decommission an individual site 
where the licensee proposes to release the site for unrestricted use. 
Therefore, the Commission plans to rely on the GEIS to satisfy its 
obligations under the National Environmental Policy Act regarding 
individual decommissioning decisions that meet the 0.25 mSv/y (25 mrem/
y) criterion for unrestricted use. However, the Commission will still 
initiate an environmental assessment regarding any particular site, for 
which a categorical exclusion is not applicable, to determine if the 
generic analysis encompasses the range of environmental impacts at that 
particular site.
    The rule also provides for the termination of the license and the 
release of a site under restricted use conditions if the licensee can 
demonstrate that land use restrictions or other types of institutional 
controls will provide reasonable assurance that the 0.25 mSv/y (25 
mrem/y) limit can be met. The types of controls and their contribution 
to providing reasonable assurance that the 0.25 mSv/y (25 mrem/y) limit 
can be met for a particular site will differ for each site in this 
category. Similarly, the rule also provides that termination of the 
license under alternate criteria will be considered by the Commission 
in certain site-specific situations that would also differ for each 
site in this category. Therefore, the environmental impacts for these 
cases cannot be analyzed on a generic basis and the Commission will 
conduct an independent environmental review for each site-specific 
decommissioning decision where land use restrictions or institutional 
controls are relied on by the licensee or where alternate criteria are 
proposed.
    The GEIS indicates that the decommissioning for certain classes of 
licensees (e.g., licensees using only sealed sources) will not 
individually or cumulatively have a significant effect on the human 
environment. Therefore, the Commission is amending Sec. 51.22 of the 
Commission's regulations to specify that the decommissioning of these 
types of licenses are actions eligible for categorical exclusion from 
the Commission's environmental review process.

VII. Final Generic Environmental Impact Statement: Availability

    As required by the National Environmental Policy Act of 1969, as 
amended, and the Commission's regulations in Subpart A of 10 CFR part 
51, the NRC has prepared a final generic environmental impact statement 
(NUREG-1496) on this proposed rule.
    The final generic environmental impact statement is available for 
inspection in the NRC Public Document Room, 2120 L Street NW. (Lower 
Level), Washington, DC. Single copies of the final generic 
environmental impact statement (NUREG-1496) may be obtained by written 
request or telefax (301-415-2260) from: Office of Administration, 
Attention: Distribution and Services Section, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.
    Background documents on the rulemaking, including the text of the 
final rule, the final GEIS, and the regulatory analysis, are also 
available for downloading and viewing on the NRC Enhanced Participatory 
Rulemaking on Radiological Criteria for Decommissioning Electronic 
Bulletin Board, 1-800-880-6091 (see 58 FR 37760 (July 13, 1993)). The 
bulletin board may be accessed using a personal computer, a modem, and 
most commonly available communications software packages. The 
communications software should have parity set to none, data bits to 8, 
and stop bits to 1 (N,8,1) and use ANSI or VT-100 terminal emulation. 
For more information call Ms. Christine Daily, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555. Phone (301) 415-6026; FAX (301) 415-
5385.

VIII. Paperwork Reduction Act Statement

    This final rule amends information collection requirements that are 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). These requirements were approved by the Office of Management and 
Budget, approval number 3150-0014.
    The public reporting burden for this collection of information is 
estimated to average 31.6 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments on any aspect of this 
collection of information, including suggestions for reducing the 
burden, to the Information and Records Management Branch (T-6 F33), 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by 
Internet electronic mail to [email protected]; and to the Desk Officer, 
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0011 
and 3150-0093), Office of Management and Budget, Washington, DC 20503.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

IX. Regulatory Analysis

    The Commission has prepared a regulatory analysis on this final 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the Commission. The analysis is available 
for inspection in the NRC Public Document Room, 2120 L Street NW. 
(Lower Level), Washington, DC. Single copies of the analysis may be 
obtained by written request from the Radiation Protection and Health 
Effects Branch (RPHEB) Secretary, Office of Nuclear Regulatory 
Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
    Background documents on the rulemaking, including the text of the 
final rule, the final GEIS, and the regulatory analysis are also 
available for downloading and viewing on the NRC Enhanced Participatory 
Rulemaking on Radiological Criteria for Decommissioning Electronic 
Bulletin Board (see Section VII, above).

X. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule, if adopted, will not 
have a significant economic impact upon a substantial number of small 
entities. Although the final rule would cover all 22,000

[[Page 39087]]

licensees regulated by the NRC and Agreement States, small entities 
covered by this rule are primarily licensees that possess and use only 
materials with short half-lives or materials only in sealed sources. 
Decommissioning efforts for these licensees are simple and require only 
that sealed sources are properly disposed of or that short-lived 
materials are allowed to decay. Complete details of the cost analysis 
are contained in the regulatory analysis.

XI. Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this final rule and therefore, a backfit analysis is not 
required for this final rule because these amendments do not involve 
reactor operations and therefore do not involve any provisions that 
would impose backfits as defined in 10 CFR 50.109(a)(1).

XII. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
``major'' rule and has verified this determination with the Office of 
Information and Regulatory Affairs, Office of Management and Budget.

List of Subjects

10 CFR Part 20

    Byproduct material, Criminal penalties, Licensed material, Nuclear 
materials, Nuclear power plants and reactors, Occupational and public 
dose limits, Occupational safety and health, Packaging and containers, 
Permissible doses, Radiation protection, Reporting and recordkeeping 
requirements, Respiratory protection, Special nuclear material, Source 
material, Surveys and monitoring, Waste treatment and disposal.

10 CFR Part 30

    Byproduct material, Criminal penalties, Government contracts, 
Intergovernmental relations, Isotopes, Nuclear materials, Radiation 
protection, Reporting and recordkeeping requirements.

10 CFR Part 40

    Criminal penalties, Government contracts, Hazardous materials 
transportation, Nuclear materials, Reporting and recordkeeping 
requirements, Source material, Uranium.

10 CFR Part 50

    Antitrust, Classified information, Criminal penalties, Fire 
protection, Intergovernmental relations, Nuclear power plants and 
reactors, Radiation protection, Reactor siting criteria, Reporting and 
recordkeeping requirements.

10 CFR Part 51

    Administrative practice and procedure, Environmental impact 
statements, Environmental regulations, assessments and reports, NEPA 
procedures, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements.

10 CFR Part 70

    Criminal penalties, Hazardous materials transportation, Material 
control and accounting, Nuclear materials, Packaging and containers, 
Radiation protection, Reporting and recordkeeping requirements, 
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 72

    Manpower training programs, Nuclear materials, Occupational safety 
and health, Reporting and recordkeeping requirements, Security 
measures, Spent fuel.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting 
the following amendments to 10 CFR parts 20, 30, 40, 50, 51, 70, and 
72.

PART 20--STANDARDS FOR PROTECTION AGAINST RADIATION

    1. The authority citation for part 20 continues to read as follows:

    Authority: Secs. 53, 63, 65, 81, 103, 104, 161, 182, 186, 68 
stat. 930, 933, 935, 936, 937, 948, 953, 955, as amended (2 U.S.C. 
2073, 2093, 2095, 2111, 2133, 2134, 2201, 2232, 2236), secs. 201, as 
amended, 202, 206, 88 stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846).

    2. In Sec. 20.1003, the definition of Background radiation is 
revised and new definitions Critical Group, Decommission, 
Distinguishable from background, and Residual radioactivity are added 
in alphabetical order to read as follows:


Sec. 20.1003  Definitions.

* * * * *
    Background radiation means radiation from cosmic sources; naturally 
occurring radioactive material, including radon (except as a decay 
product of source or special nuclear material); and global fallout as 
it exists in the environment from the testing of nuclear explosive 
devices or from past nuclear accidents such as Chernobyl that 
contribute to background radiation and are not under the control of the 
licensee. ``Background radiation'' does not include radiation from 
source, byproduct, or special nuclear materials regulated by the 
Commission.
* * * * *
    Critical Group means the group of individuals reasonably expected 
to receive the greatest exposure to residual radioactivity for any 
applicable set of circumstances.
* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *
    Distinguishable from background means that the detectable 
concentration of a radionuclide is statistically different from the 
background concentration of that radionuclide in the vicinity of the 
site or, in the case of structures, in similar materials using adequate 
measurement technology, survey, and statistical techniques.
* * * * *
    Residual radioactivity means radioactivity in structures, 
materials, soils, groundwater, and other media at a site resulting from 
activities under the licensee's control. This includes radioactivity 
from all licensed and unlicensed sources used by the licensee, but 
excludes background radiation. It also includes radioactive materials 
remaining at the site as a result of routine or accidental releases of 
radioactive material at the site and previous burials at the site, even 
if those burials were made in accordance with the provisions of 10 CFR 
part 20.
* * * * *
    3. In Sec. 20.1009, paragraph (b) is revised to read as follows:


Sec. 20.1009  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Secs. 20.1003, 20.1101, 20.1202, 20.1203, 20.1204, 
20.1206, 20.1208, 20.1301, 20.1302, 20.1403, 20.1404, 20.1406, 20.1501, 
20.1601, 20.1703, 20.1901, 20.1902, 20.1904, 20.1905, 20.1906, 20.2002, 
20.2004, 20.2006, 20.2102, 20.2103, 20.2104, 20.2105, 20.2106, 20.2107, 
20.2108,

[[Page 39088]]

20.2110, 20.2201, 20.2202, 20.2203, 20.2204, 20.2205, 20.2206, 20.2301, 
and Appendices F and G to 10 CFR Part 20.
* * * * *
    4. A new subpart E entitled ``Radiological Criteria for License 
Termination,'' is added to 10 CFR part 20 to read as follows:

Subpart E--Radiological Criteria for License Termination

Sec.
20.1401  General provisions and scope.
20.1402  Radiological criteria for unrestricted use.
20.1403  Criteria for license termination under restricted 
conditions.
20.1404  Alternate criteria for license termination.
20.1405  Public notification and public participation.
20.1406  Minimization of contamination.


Sec. 20.1401  General provisions and scope.

    (a) The criteria in this subpart apply to the decommissioning of 
facilities licensed under parts 30, 40, 50, 60, 61, 70, and 72 of this 
chapter, as well as other facilities subject to the Commission's 
jurisdiction under the Atomic Energy Act of 1954, as amended, and the 
Energy Reorganization Act of 1974, as amended. For high-level and low-
level waste disposal facilities (10 CFR parts 60 and 61), the criteria 
apply only to ancillary surface facilities that support radioactive 
waste disposal activities. The criteria do not apply to uranium and 
thorium recovery facilities already subject to appendix A to 10 CFR 
part 40 or to uranium solution extraction facilities.
    (b) The criteria in this subpart do not apply to sites which:
    (1) Have been decommissioned prior to the effective date of the 
rule in accordance with criteria identified in the Site Decommissioning 
Management Plan (SDMP) Action Plan of April 16, 1992 (57 FR 13389);
    (2) Have previously submitted and received Commission approval on a 
license termination plan (LTP) or decommissioning plan that is 
compatible with the SDMP Action Plan criteria; or
    (3) Submit a sufficient LTP or decommissioning plan before August 
20, 1998 and such LTP or decommissioning plan is approved by the 
Commission before August 20, 1999 and in accordance with the criteria 
identified in the SDMP Action Plan, except that if an EIS is required 
in the submittal, there will be a provision for day-for-day extension.
    (c) After a site has been decommissioned and the license terminated 
in accordance with the criteria in this subpart, the Commission will 
require additional cleanup only if, based on new information, it 
determines that the criteria of this subpart were not met and residual 
radioactivity remaining at the site could result in significant threat 
to public health and safety.
    (d) When calculating TEDE to the average member of the critical 
group the licensee shall determine the peak annual TEDE dose expected 
within the first 1000 years after decommissioning.


Sec. 20.1402  Radiological criteria for unrestricted use.

    A site will be considered acceptable for unrestricted use if the 
residual radioactivity that is distinguishable from background 
radiation results in a TEDE to an average member of the critical group 
that does not exceed 25 mrem (0.25 mSv) per year, including that from 
groundwater sources of drinking water, and the residual radioactivity 
has been reduced to levels that are as low as reasonably achievable 
(ALARA). Determination of the levels which are ALARA must take into 
account consideration of any detriments, such as deaths from 
transportation accidents, expected to potentially result from 
decontamination and waste disposal.


Sec. 20.1403  Criteria for license termination under restricted 
conditions.

    A site will be considered acceptable for license termination under 
restricted conditions if:
    (a) The licensee can demonstrate that further reductions in 
residual radioactivity necessary to comply with the provisions of 
Sec. 20.1402 would result in net public or environmental harm or were 
not being made because the residual levels associated with restricted 
conditions are ALARA. Determination of the levels which are ALARA must 
take into account consideration of any detriments, such as traffic 
accidents, expected to potentially result from decontamination and 
waste disposal;
    (b) The licensee has made provisions for legally enforceable 
institutional controls that provide reasonable assurance that the TEDE 
from residual radioactivity distinguishable from background to the 
average member of the critical group will not exceed 25 mrem (0.25 mSv) 
per year;
    (c) The licensee has provided sufficient financial assurance to 
enable an independent third party, including a governmental custodian 
of a site, to assume and carry out responsibilities for any necessary 
control and maintenance of the site. Acceptable financial assurance 
mechanisms are--
    (1) Funds placed into an account segregated from the licensee's 
assets and outside the licensee's administrative control as described 
in Sec. 30.35(f)(1) of this chapter;
    (2) Surety method, insurance, or other guarantee method as 
described in Sec. 30.35(f)(2) of this chapter;
    (3) A statement of intent in the case of Federal, State, or local 
Government licensees, as described in Sec. 30.35(f)(4) of this chapter; 
or
    (4) When a governmental entity is assuming custody and ownership of 
a site, an arrangement that is deemed acceptable by such governmental 
entity.
    (d) The licensee has submitted a decommissioning plan or License 
Termination Plan (LTP) to the Commission indicating the licensee's 
intent to decommission in accordance with Secs. 30.36(d), 40.42(d), 
50.82 (a) and (b), 70.38(d), or 72.54 of this chapter, and specifying 
that the licensee intends to decommission by restricting use of the 
site. The licensee shall document in the LTP or decommissioning plan 
how the advice of individuals and institutions in the community who may 
be affected by the decommissioning has been sought and incorporated, as 
appropriate, following analysis of that advice.
    (1) Licensees proposing to decommission by restricting use of the 
site shall seek advice from such affected parties regarding the 
following matters concerning the proposed decommissioning--
    (i) Whether provisions for institutional controls proposed by the 
licensee;
    (A) Will provide reasonable assurance that the TEDE from residual 
radioactivity distinguishable from background to the average member of 
the critical group will not exceed 25 mrem (0.25 mSv) TEDE per year;
    (B) Will be enforceable; and
    (C) Will not impose undue burdens on the local community or other 
affected parties.
    (ii) Whether the licensee has provided sufficient financial 
assurance to enable an independent third party, including a 
governmental custodian of a site, to assume and carry out 
responsibilities for any necessary control and maintenance of the site;
    (2) In seeking advice on the issues identified in 
Sec. 20.1403(d)(1), the licensee shall provide for:
    (i) Participation by representatives of a broad cross section of 
community interests who may be affected by the decommissioning;
    (ii) An opportunity for a comprehensive, collective discussion on

[[Page 39089]]

the issues by the participants represented; and
    (iii) A publicly available summary of the results of all such 
discussions, including a description of the individual viewpoints of 
the participants on the issues and the extent of agreement and 
disagreement among the participants on the issues; and
    (e) Residual radioactivity at the site has been reduced so that if 
the institutional controls were no longer in effect, there is 
reasonable assurance that the TEDE from residual radioactivity 
distinguishable from background to the average member of the critical 
group is as low as reasonably achievable and would not exceed either--
    (1) 100 mrem (1 mSv) per year; or
    (2) 500 mrem (5 mSv) per year provided the licensee--
    (i) Demonstrates that further reductions in residual radioactivity 
necessary to comply with the 100 mrem/y (1 mSv/y) value of paragraph 
(e)(1) of this section are not technically achievable, would be 
prohibitively expensive, or would result in net public or environmental 
harm;
    (ii) Makes provisions for durable institutional controls;
    (iii) Provides sufficient financial assurance to enable a 
responsible government entity or independent third party, including a 
governmental custodian of a site, both to carry out periodic rechecks 
of the site no less frequently than every 5 years to assure that the 
institutional controls remain in place as necessary to meet the 
criteria of Sec. 20.1403(b) and to assume and carry out 
responsibilities for any necessary control and maintenance of those 
controls. Acceptable financial assurance mechanisms are those in 
paragraph (c) of this section.


Sec. 20.1404  Alternate criteria for license termination.

    (a) The Commission may terminate a license using alternate criteria 
greater than the dose criterion of Secs. 20.1402, 20.1403(b), and 
20.1403(d)(1)(i)(A), if the licensee--
    (1) Provides assurance that public health and safety would continue 
to be protected, and that it is unlikely that the dose from all man-
made sources combined, other than medical, would be more than the 1 
mSv/y (100 mrem/y) limit of subpart D, by submitting an analysis of 
possible sources of exposure;
    (2) Has employed to the extent practical restrictions on site use 
according to the provisions of Sec. 20.1403 in minimizing exposures at 
the site; and
    (3) Reduces doses to ALARA levels, taking into consideration any 
detriments such as traffic accidents expected to potentially result 
from decontamination and waste disposal.
    (4) Has submitted a decommissioning plan or License Termination 
Plan (LTP) to the Commission indicating the licensee's intent to 
decommission in accordance with Secs. 30.36(d), 40.42(d), 50.82 (a) and 
(b), 70.38(d), or 72.54 of this chapter, and specifying that the 
licensee proposes to decommission by use of alternate criteria. The 
licensee shall document in the decommissioning plan or LTP how the 
advice of individuals and institutions in the community who may be 
affected by the decommissioning has been sought and addressed, as 
appropriate, following analysis of that advice. In seeking such advice, 
the licensee shall provide for:
    (i) Participation by representatives of a broad cross section of 
community interests who may be affected by the decommissioning;
    (ii) An opportunity for a comprehensive, collective discussion on 
the issues by the participants represented; and
    (iii) A publicly available summary of the results of all such 
discussions, including a description of the individual viewpoints of 
the participants on the issues and the extent of agreement and 
disagreement among the participants on the issues.
    (b) The use of alternate criteria to terminate a license requires 
the approval of the Commission after consideration of the NRC staff's 
recommendations that will address any comments provided by the 
Environmental Protection Agency and any public comments submitted 
pursuant to Sec. 20.1405.


Sec. 20.1405  Public notification and public participation.

    Upon the receipt of an LTP or decommissioning plan from the 
licensee, or a proposal by the licensee for release of a site pursuant 
to Secs. 20.1403 or 20.1404, or whenever the Commission deems such 
notice to be in the public interest, the Commission shall:
    (a) Notify and solicit comments from:
    (1) local and State governments in the vicinity of the site and any 
Indian Nation or other indigenous people that have treaty or statutory 
rights that could be affected by the decommissioning; and
    (2) the Environmental Protection Agency for cases where the 
licensee proposes to release a site pursuant to Sec. 20.1404.
    (b) Publish a notice in the Federal Register and in a forum, such 
as local newspapers, letters to State or local organizations, or other 
appropriate forum, that is readily accessible to individuals in the 
vicinity of the site, and solicit comments from affected parties.


Sec. 20.1406  Minimization of contamination.

    Applicants for licenses, other than renewals, after August 20, 
1997, shall describe in the application how facility design and 
procedures for operation will minimize, to the extent practicable, 
contamination of the facility and the environment, facilitate eventual 
decommissioning, and minimize, to the extent practicable, the 
generation of radioactive waste.
    5. In Sec. 20.2402, paragraph (b) is revised to read as follows:


Sec. 20.2402  Criminal penalties.

* * * * *
    (b) The regulations in Secs. 20.1001 through 20.2402 that are not 
issued under Sections 161b, 161i, or 161o for the purposes of Section 
223 are as follows: Secs. 20.1001, 20.1002, 20.1003, 20.1004, 20.1005, 
20.1006, 20.1007, 20.1008, 20.1009, 20.1405, 20.1704, 20.1903, 20.1905, 
20.2002, 20.2007, 20.2301, 20.2302, 20.2401, and 20.2402.

PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF 
BYPRODUCT MATERIAL

    6. The authority citation for part 30 continues to read as follows:

    Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846).
    Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat 3123 (2 
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    7. In Sec. 30.4, the definition of Decommission is revised to read 
as follows:


Sec. 30.4  Definitions.

* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *

[[Page 39090]]

    8. In Sec. 30.35, paragraph (f)(5) is added and paragraph 
(g)(3)(iv) is revised to read as follows:


Sec. 30.35  Financial assurance and recordkeeping for decommissioning.

* * * * *
    (f) * * *
    (5) When a governmental entity is assuming custody and ownership of 
a site, an arrangement that is deemed acceptable by such governmental 
entity.
    (g) * * *
    (3) * * *
    (iv) All areas outside of restricted areas that contain material 
such that, if the license expired, the licensee would be required to 
either decontaminate the area to meet the criteria for decommissioning 
in 10 CFR part 20, subpart E, or apply for approval for disposal under 
10 CFR 20.2002.
* * * * *
    9. In Sec. 30.36, the introductory text of paragraph (j)(2) and 
paragraph (k)(3) are revised to read as follows:


Sec. 30.36  Expiration and termination of licenses and decommissioning 
of sites and separate buildings or outdoor areas.

* * * * *
    (j) * * *
    (2) Conduct a radiation survey of the premises where the licensed 
activities were carried out and submit a report of the results of this 
survey, unless the licensee demonstrates in some other manner that the 
premises are suitable for release in accordance with the criteria for 
decommissioning in 10 CFR part 20, subpart E. The licensee shall, as 
appropriate--
* * * * *
    (k) * * *
    (3)(i) A radiation survey has been performed which demonstrates 
that the premises are suitable for release in accordance with the 
criteria for decommissioning in 10 CFR part 20, subpart E; or
    (ii) Other information submitted by the licensee is sufficient to 
demonstrate that the premises are suitable for release in accordance 
with the criteria for decommissioning in 10 CFR part 20, subpart E.
* * * * *

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

    10. The authority citation for part 40 continues to read as 
follows:

    Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022).
    Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 
U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 
939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 
Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued 
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    11. In Sec. 40.4, the definition of Decommission is revised to read 
as follows:


Sec. 40.4  Definitions.

* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *
    12. In Sec. 40.36, paragraph (e)(5) is added and paragraph 
(f)(3)(iv) is revised to read as follows:


Sec. 40.36  Financial assurance and recordkeeping for decommissioning.

* * * * *
    (e) * * *
    (5) When a governmental entity is assuming custody and ownership of 
a site, an arrangement that is deemed acceptable by such governmental 
entity.
    (f) * * *
    (3) * * *
    (iv) All areas outside of restricted areas that contain material 
such that, if the license expired, the licensee would be required to 
either decontaminate the area to meet the criteria for decommissioning 
in 10 CFR part 20, subpart E, or apply for approval for disposal under 
10 CFR 20.2002.
* * * * *
    13. In Sec. 40.42, the introductory text of paragraph (j)(2) and 
paragraph (k)(3) are revised to read as follows:


Sec. 40.42  Expiration and termination of licenses and decommissioning 
of sites and separate buildings or outdoor areas.

* * * * *
    (j) * * *
    (2) Conduct a radiation survey of the premises where the licensed 
activities were carried out and submit a report of the results of this 
survey, unless the licensee demonstrates in some other manner that the 
premises are suitable for release in accordance with the criteria for 
decommissioning in 10 CFR part 20, subpart E. The licensee shall, as 
appropriate--
* * * * *
    (k) * * *
    (3)(i) A radiation survey has been performed which demonstrates 
that the premises are suitable for release in accordance with the 
criteria for decommissioning in 10 CFR part 20, subpart E; or
    (ii) Other information submitted by the licensee is sufficient to 
demonstrate that the premises are suitable for release in accordance 
with the criteria for decommissioning in 10 CFR part 20, subpart E.
* * * * *

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

    14. The authority citation for part 50 continues to read as 
follows:

    Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
    Section 50.7 is also issued under Pub. L. 95-601, sec. 10, 92 
Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 
(42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 
Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 
91-190, 82 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), 
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 
U.S.C. 2138).
    Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 
185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and 
Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 
(42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 
204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 
50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 
2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 
U.S.C. 2152). Sections 50.80-50-81 also issued under sec. 184, 68 
Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    15. In Sec. 50.2, the definition of Decommission is revised to read 
as follows:


Sec. 50.2  Definitions.

* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--

[[Page 39091]]

    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *
    16. In Sec. 50.82, paragraphs (a)(11)(ii) and (b)(6)(ii) are 
revised to read as follows:


Sec. 50.82  Termination of license.

* * * * *
    (a) * * *
    (11) * * *
    (ii) The terminal radiation survey and associated documentation 
demonstrates that the facility and site are suitable for release in 
accordance with the criteria for decommissioning in 10 CFR part 20, 
subpart E.
    (b) * * *
    (6) * * *
    (ii) The terminal radiation survey and associated documentation 
demonstrate that the facility and site are suitable for release in 
accordance with the criteria for decommissioning in 10 CFR part 20, 
subpart E.
* * * * *

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

    17. The authority citation for part 51 continues to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); 
secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 
U.S.C. 5841, 5842).
    Subpart A also issued under National Environmental Policy Act of 
1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 
4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; 
and sec. 193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). 
Sections 51.20, 51.30, 51.60, 51.61, 51.80, and 51.97 also issued 
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 
148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 
10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as 
amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear 
Waste Policy Act of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). 
Sections 51.43, 51.67, and 51.109 also issued under Nuclear Waste 
Policy Act of 1982, sec. 114(f), 96 Stat. 2216, as amended (42 
U.S.C. 10134(f)).

    18. In Sec. 51.22, paragraph (c)(20) is added to read as follows:


Sec. 51.22  Criterion for categorical exclusion; identification of 
licensing and regulatory actions eligible for categorical exclusion or 
otherwise not requiring environmental review.

* * * * *
    (c) * * *
    (20) Decommissioning of sites where licensed operations have been 
limited to the use of--
    (i) Small quantities of short-lived radioactive materials; or
    (ii) Radioactive materials in sealed sources, provided there is no 
evidence of leakage of radioactive material from these sealed sources.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

    19. The authority citation for part 70 continues to read as 
follows:

    Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 
953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 
2071, 2073, 2201, 2232, 2233, 2282); secs. 201, as amended, 202, 
204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 U.S.C. 
5841, 5842, 5845, 5846).
    Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, 
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). 
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486 sec. 2902, 106 Stat. 3123 (42 
U.S.C. 5851). Section 70.21(g) also issued under sec. 122, 68 Stat. 
939 (42 U.S.C. 2152). Section 70.31 also issued under sec. 57d, Pub. 
L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 and 70.44 
also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 
2234). Section 70.61 also issued under secs. 186, 187, 68 Stat. 955 
(42 U.S.C. 2236, 2237). Section 70.62 also issued under sec. 108, 68 
Stat. 939, as amended (42 U.S.C. 2138).

    20. In Sec. 70.4, the definition of Decommission is revised to read 
as follows:


Sec. 70.4  Definitions.

* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *
    21. In Sec. 70.25, paragraph (f)(5) is added and paragraph 
(g)(3)(iv) is revised to read as follows:


Sec. 70.25  Financial assurance and recordkeeping for decommissioning.

* * * * *
    (f) * * *
    (5) When a governmental entity is assuming custody and ownership of 
a site, an arrangement that is deemed acceptable by such governmental 
entity.
    (g) * * *
    (3) * * *
    (iv) All areas outside of restricted areas that contain material 
such that, if the license expired, the licensee would be required to 
either decontaminate the area to meet the criteria for decommissioning 
in 10 CFR part 20, subpart E, or apply for approval for disposal under 
10 CFR 20.2002.
* * * * *
    22. In Sec. 70.38, the introductory text of paragraph (j)(2) and 
paragraph (k)(3) are revised to read as follows:


Sec. 70.38  Expiration and termination of licenses and decommissioning 
of sites and separate buildings or outdoor areas.

* * * * *
    (j) * * *
    (2) Conduct a radiation survey of the premises where the licensed 
activities were carried out and submit a report of the results of this 
survey, unless the licensee demonstrates in some other manner that the 
premises are suitable for release in accordance with the criteria for 
decommissioning in 10 CFR part 20, subpart E. The licensee shall, as 
appropriate--
* * * * *
    (k) * * *
    (3)(i) A radiation survey has been performed which demonstrates 
that the premises are suitable for release in accordance with the 
criteria for decommissioning in 10 CFR part 20, subpart E; or
    (ii) Other information submitted by the licensee is sufficient to 
demonstrate that the premises are suitable for release in accordance 
with the criteria for decommissioning in 10 CFR part 20, subpart E.
* * * * *

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF 
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

    23. The authority citation for part 72 continues to read as 
follows:

    Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332). Secs. 131, 132, 133, 135, 
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, 
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 
10155, 10157, 10161, 10168).
    Section 72.44(g) also issued under secs. 142(b) and 148 (c), 
(d), Pub. L. 100-203, 101

[[Page 39092]]

Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168 (c), (d)). 
Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 
2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). 
Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 
Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under 
secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 
2202, 2203, 2204, 2222, 2244, (42 U.S.C. 10101, 10137(a), 10161(h)). 
Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 
U.S.C. 10153) and Sec. 218(a) 96 Stat. 2252 (42 U.S.C. 10198).

    24. In Sec. 72.3, the definition of Decommission is revised to read 
as follows:


Sec. 72.3  Definitions.

* * * * *
    Decommission means to remove a facility or site safely from service 
and reduce residual radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination of 
the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.
* * * * *
    25. In Sec. 72.30, paragraph (c)(6) is added to read as follows:


Sec. 72.30  Financial assurance and recordkeeping for decommissioning.

* * * * *
    (c) * * *
    (6) When a governmental entity is assuming custody and ownership of 
a site, an arrangement that is deemed acceptable by such governmental 
entity.
* * * * *
    26. In Sec. 72.54, the introductory text of paragraph (l)(2) and 
paragraph (m)(2) are revised to read as follows:


Sec. 72.54  Expiration and termination of licenses and decommissioning 
of sites and separate buildings or outdoor areas.

* * * * *
    (l) * * *
    (2) Conduct a radiation survey of the premises where the licensed 
activities were conducted and submit a report of the results of this 
survey, unless the licensee demonstrates in some other manner that the 
premises are suitable for release in accordance with the criteria for 
decommissioning in 10 CFR part 20, subpart E. The licensee shall, as 
appropriate--
    (m) * * *
    (2)(i) A radiation survey has been performed which demonstrates 
that the premises are suitable for release in accordance with the 
criteria for decommissioning in 10 CFR part 20, subpart E; or
    (ii) Other information submitted by the licensee is sufficient to 
demonstrate that the premises are suitable for release in accordance 
with the criteria for decommissioning in 10 CFR part 20, subpart E.
* * * * *
    Dated at Rockville, Maryland, this 1st day of July 1997.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-17752 Filed 7-18-97; 8:45 am]
BILLING CODE 7590-01-P